Summary: There was fault in the way the Council made decisions in response to Mr C’s sister’s request to become appointee for Mr C and this meant that Mr C’s sister had to make an application for deputyship. There were long gaps in the authorisations of Mr C’s deprivation of liberty which meant that Mr C did not have the benefit of the scrutiny of these authorisations. The Council has agreed to an apology and a financial remedy.

The complaint

1. Mrs B complains on behalf of Mr C who has sadly passed away.
2. Mrs B says:
• The Council refused to agree that she could become Mr C’s appointee for benefits. The Council had no valid reasons to do so.
• The Council tried to stop contact between Mr C and his family to build a case against Mrs B obtaining deputyship.
• There were times when no deprivation of liberty (DoLS) authorisations in place while Mr was living in the care home was in place.
• She disagreed with the Council about end-of-life care for Mr C, Mr C’s care plan and whether this current care home could meet his needs.

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What I have investigated

3. I have investigated the complaints regarding Mrs B’s application to become appointee, the contact and the DoLS applications. Paragraph 64 explains why I have not investigated the complaints relating to Mr C’s care.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
7. 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)
8. If we are satisfied with an organisation’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 have considered the evidence provided by Mrs B and the Council, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

10. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act is supported by the Mental Capacity Act Code of Practice which provides practical guidance on what action to take.

Appointee

11. If a person lacks the mental capacity to manage their benefits, then a relative or the local authority can be registered with the DWP to deal with their benefits.

Deputy

12. A property and financial affairs deputy is authorised by the Court of Protection (CoP) to make financial decisions on behalf of a person who lacks the mental capacity to do so. The powers of a deputy are wider than the appointee as the appointee can only deal with benefits whereas a deputy has the legal power to make decisions about all of their financial affairs.

Deprivation of Liberty Safeguards (DoLS)

13. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
14. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home to apply for authorisation.
15. On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.

What happened

16. Mr C had physical and learning disabilities and had been living in a care home since 2007. He lacked the mental capacity to make financial decisions or decisions about his care and where he should live. His mother had recently died.
17. I have summarised events relevant to the complaints Mrs B made. The complaints related to:
• The Council’s refusal to transfer appointeeship.
• Gaps in the DoLS authorisations.
• Direct contact.

Chronology

Best interest meeting – 5 September 2019

18. Mrs B attended a multi-disciplinary meeting regarding Mr C in September 2019 to discuss his care plans.
19. Mrs B said that, now that Mr C’s mother had died, she would be able to advocate for Mr C and participate in best interest decisions for him.
20. Mrs B said that she wanted to make an application to the CoP for deputyship for financial affairs and health and welfare decisions as Mr C did not have the mental capacity to authorise a Lasting Power of Attorney.
21. Mrs B asked whether Mr C was subject to a DoLS authorisation. The Home’s manager confirmed that he was.
22. Mrs B sent an email to the Council on 6 September 2019 asking whether the Council objected to her application for deputyship as that was the impression she had from the meeting.

Council’s email – September 2019

23. The Council replied in September 2019 and said:
• The Council acted as appointee for Mr C. Therefore, if Mrs B applied for deputyship for finances, she should name the Council as a party to the proceedings.
• In terms of the application for deputyship for financial affairs the Council said it ‘will not seek to intervene in these proceedings.’
24. In the following months, there were increasing disagreements between the Council and Mrs B about the care plan for Mr C and whether he should continue to live at the Home.

Email – 22 January 2020

25. Mrs B sent an email to the Council and said she would like to become Mr C’s appointee for finances.
26. The Council replied and said:
• It would not relinquish its appointeeship. It had acted as appointee for Mr C his entire life ‘without any issues and would continue to do so’. Therefore, there appeared to be no benefit in his best interests to transfer appointeeship to Mrs B. If Mrs B disagreed, she would have to apply to become Mr C’s deputy for finances.

Letter to DWP – 12 February 2020

27. The Council wrote to the DWP and cited safeguarding concerns regarding Mrs B for refusing to relinquish deputyship to Mrs B.

Application for deputyship – March 2020

28. Mrs B made an application for deputyship for finance and property at the CoP in March 2020. The Council did not object to the application so the application was heard without notice and without a hearing. The Court granted the order on 17 September 2020.
29. Mrs B made an application to challenge the DoLS and to ask for a change of residence for Mr C in July 2020.
30. Mrs B complained in August 2020 that the contact she had with Mr C through a window was not of value to Mr C because of his disabilities. She wanted to have direct contact with Mr C and wanted to hold a best interest meeting regarding this.
31. The Home explained that the current COVID-19 advice from the Council was that there should be no visits in care homes. The Council updated its advice on 14 September 2020 and said care homes should have a visiting policy and set out what matters care homes should consider when they set the policy.
32. Mrs B planned to visit Mr C on 4 or 5 October 2020, but unfortunately, the Home then had a COVID-19 infection on 3 October 2020. There was an email on 3 November 2020 stating there had been a further positive COVID-19 test. The policy at the time was that no visits (except in exceptional circumstances such as end of life) could take place until a care home had been free of infection for at least 28 days.
33. The Council emailed Mrs B on 19 November 2020 and said the period for the Home to wait until the last infection should end on 25 November 2020 so, after that, visits at the Home could start but there would be restrictions in place such as wearing a mask, no touching and so on.
34. There was new Council guidance on 16 December 2020 which said the Council did not recommend that care homes allowed people in care homes to have close contact with loved ones. In addition, the area where Mrs B lived was put in Tier 4 restrictions so she was not able to travel.
35. Sadly Mr C was admitted to hospital on 8 January 2021 and passed away on 22 February 2021.

Further information

Chronology - DoLS authorisations

36. The Council provided the following chronology of DoLS authorisation:
• 23 September 2015: The Home applied for DoLS authorisation.
• 4 April 2016: The Council granted DoLS authorisation for one year.
• 9 March 2017: The Home applied for DoLS authorisation.
• 3 January 2020: The Council granted DoLS authorisation for one year.

Complaint

37. Mrs B complained to the Council in August 2020. The complaint correspondence ended in October 2021. I have summarised the complaints and the correspondence insofar as they are relevant to the complaints I am investigating.
38. Mrs B said:

Appointee

• The family wanted to take on appointeeship of Mr C’s benefits. The Council refused this without good reasons and was not acting in Mr C’s best interests when it made the decision.

DoLS

• There were no DoLS authorisations in place for Mr C for several years. This only came to light when the family enquired about the DoLS at the meeting in September 2019.
• The Home said at the meeting on 5 September 2019 that a DoLS authorisation was in place for Mr C. That was not true.

Contact

• The Council and the Home had put unnecessary restrictions on contact between her and Mr C.

The Council’s reply

Appointee

39. The Council replied to the complaint on 20 August 2021 and said:
• There was no evidence of bias against Mrs B in term of financial appointeeship ‘however there were concerns about [Mrs B’s] decision making around medication and care which were contradictory to the position of the authority and other professionals involved in [Mr C’s] care’.
• Mrs B was notified on 9 September 2019 that the Council would not intervene in the application for financial deputyship.
• ‘In terms of financial appointeeship, there is evidence that the social worker contacted DWP citing safeguarding concerns which related to the concerns around decisions on care. Having reflected upon the concerns that were raised, whilst I do think the worker was correct in noting these concerns, I do not think it was necessary for these to be shared with DWP in the context of finances. I sincerely apologise that these were shared unnecessarily and appreciate the distress this could have caused the family.’

DoLS authorisations

• It admitted that there were gaps in the DoLS authorisations and said these were ‘purely due to a lack of DoLS resources which has been a national issue for some time.’
• The Council prioritised urgent cases which was reflective of practice across most councils as this was a national issue.

Contact

• The Home’s restrictions on contact were in line with the Council’s guidance on COVID-19 restrictions.

Further comments

40. The Council made further comments to the Ombudsman in relation to its decision to refuse Mrs B to become Mr C’s appointee.
41. The Council questioned whether the Ombudsman could investigate this matter as Mrs B had made an application for deputyship at the CoP which had already been considered by the Court.
42. The Council said:
• It had already acknowledged in its complaint response of August 2021 that it should not have shared its safeguarding concerns with the DWP.
• The Council had not started a safeguarding enquiry relating to Mrs B.
43. The Council explained why it did not oppose Mrs B’s application to become Mr C’s deputy. It said: ‘The court’s consideration of this request was considered to be a suitable process to decide this authority.’

Analysis

Refusal of appointeeship

44. I shall firstly address the Council’s concern that the Ombudsman is investigating matters that have been subject to court proceedings. I have been very careful in not investigating any complaints that were considered by the CoP. This meant that Mrs B’s complaints which related to her disagreement with the Council about Mr C’s end of life care, the care planning, her view that the care home could not properly care for Mr C and her request that Mr C should move to a different care home have not been investigated by the Ombudsman.
45. However, The Ombudsman can consider complaints about events and communications which happened before the start of the court proceedings. I can therefore consider the Council’s reasoning in its decision making and its communications about its refusal to transfer the appointeeship to Mrs B.
46. There were several contradictions in the Council’s decision making which suggest the Council had not properly considered the matter.
47. The main contradiction was that the Council refused the transfer of the appointeeship but did not object to the application for deputyship. That appears to me to be a contradictory position and the Council failed to properly explain its reasons for this contradiction.
48. The Council’s concerns about Mrs B gaining control over Mr C’s finances were either valid or they were not. Both deputyship and appointeeship would give Mrs B control over Mr C’s finances so the Council’s response should have been the same.
49. If the Council’s safeguarding concerns regarding Mrs B were valid, then the Council had a duty to inform the CoP when Mrs B made her application to become deputy so that the CoP had all the information when it made its decision. If the concerns were not valid, then the Council should not have objected to the transfer of the appointeeship.
50. Secondly, the Council was not transparent with Mrs B about its reasons for the refusal of the transfer of the appointeeship. It told Mrs B that it would continue to retain the appointeeship as it had always done so ‘without any issues and would continue to do so’ whereas it told the DWP it was doing so because of the safeguarding concerns. It was only after Mrs B complained that she found out about the safeguarding concerns.
51. The Council never started a formal safeguarding enquiry or formally informed Mrs B of the safeguarding concerns. This left Mrs B in the difficult position that she did not know what she was being accused of and yet, decisions were being made based on the safeguarding concerns.
52. The Council then contradicted itself further by admitting, in its complaint response of 20 August 2021, that, although the Council was correct in noting the safeguarding concerns, it should not have shared the concerns with the DWP. Therefore, it was no longer clear on what basis the Council had refused the appointeeship transfer.

DoLS

53. I appreciate that there is a nation-wide problem of delays in DoLS authorisations. However, there was fault in the Council’s actions. There were substantive delays in Mr C’s DoLS authorisations and there were several years where Mr C’s liberty was deprived without proper legal authorisation. The gaps meant that Mr C did not always have the benefit of the DoLS authorisation process of scrutiny and assessment.
54. I uphold the decision that the Home was not correct in saying that a DoLS authorisation was in place at the meeting on 5 September 2019. The Home had applied for a DoLS authorisation on 9 March 2017 but it was not approved until 3 January 2020.

Contact

55. I find no fault in the way the Home made decisions regarding Mr C’s contact. Although I absolutely appreciate that it was very important for Mr C and Mrs B to have contact, the Home was following the relevant COVID-19 guidance at the time.

Remedy

56. The person who has suffered the main injustice in terms of the DoLS authorisations is Mr C, but sadly, any injustice to him cannot be remedied as he has passed away.
57. I have also considered Mrs B’s injustice and remedy in relation to the Council’s refusal to transfer the appointeeship to her. The aim of the Ombudsman’s remedy is to put the complainant in the position they would been if nothing had gone wrong.
58. Mrs B said she initially considered applying for deputyship as she was not aware of the appointeeship. However, once she became aware of that option, she asked the Council to agree to transfer the appointeeship to her and the Council refused. She said she therefore had no other option but to apply for deputyship and the Council should pay her legal costs for the application. Mrs B acknowledged that deputyship gave her additional powers in obtaining financial information which appointeeship would not have provided.
59. The Ombudsman exceptionally pays for legal costs. I have considered Mrs B’s argument. The Council’s refusal to transfer the appointeeship to Mrs B meant Mrs B had no other option than to apply for deputyship. However, I accept that the deputyship gave Mrs B more powers than the appointeeship did so it is possible that Mrs B may have applied for deputyship at some point in the future in any event.
60. I am therefore of the view that a fair remedy would for the Council to pay for half of Mrs B’s legal costs in applying for the deputyship. The Council should only pay the legal costs relating to the deputyship court application, not any other legal costs. Mrs B has provided an invoice relating to the deputyship application totalling £1,013 and the Council has agreed to pay half of that invoice.
61. If Mrs B wishes to send further evidence of legal costs, she can do so. However this should be an itemised bill/invoice from her solicitors, so that the Council can determine what the costs relate to and they are reasonable charges that the Council should meet.

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Agreed action

62. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise to Mrs B in writing for the fault.
• Pay Mrs B half of the legal costs of her court application to become Mr C’s deputy (as evidenced by the invoices).

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Final decision

63. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Parts of the complaint that I did not investigate

64. I have not investigated the complaints about the end-of-life care for Mr C, Mr C’s care plan and whether the Home could meet his needs. These matters were subject to court proceedings at the CoP and therefore out of the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman