Decision : Upheld
Decision date : 24 May 2018
The Ombudsman's final decision:
Summary: Mrs B complains about the actions of the Council associated with her solicitor’s requests for information required for an application to the Court of Protection. She also complains about failures in its communications and in complaint handling. The Ombudsman finds there was fault by the Council, causing injustice for which a remedy is recommended.
- The complainant, whom I shall call Mrs B, complains the Council delayed in providing a copy of an assessment of capacity report (Form COP3) in respect of her daughter, C. The form was required for Mrs B’s application to the Court of Protection. In addition, she complains the Council failed to respond to communications about the matter and failed to properly deal with her subsequent complaint about it.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered all the information provided by Mrs B about her complaint, including the Council’s response to her complaint. I made written enquiries of the Council and took account of all the information it provided in response. I provided Mrs B and the Council with a draft of this decision and considered all comments made on it.
What I found
- Mrs B’s daughter C has Downs Syndrome and autism. She is now 20 years old, and she has been in a foster placement since she was 14 years old. Mrs B has continued to be involved in supporting her daughter.
- When a young person who is in the care of social services reaches age 18, responsibility for their care transfers from children’s services to adult services within the Council. It is important that councils plan to ensure a smooth transition with no gap in services.
The Court of Protection
- The Court of Protection makes decisions on financial or welfare matters for people who are unable to make decisions at the time they need to be made. Its responsibilities include appointing deputies to make ongoing decisions for people who lack mental capacity and making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration. Application for deputyship for property and affairs requires completion of form COP3 Assessment of Capacity.
Transition planning for C
- In October 2015, prior to C’s eighteenth birthday in February 2016, the Council completed an assessment of needs for transition support. Mrs B was present at the assessment. In respect of financial affairs, the assessment form completed then noted that C’s foster carer was supporting her with her financial affairs. It also noted “In process of applying for Court of Protection for welfare and financial affairs in preparation for choices and decision making during time of changes”.
- The form was not clear in saying whether the person applying to the Court of Protection was Mrs B, or her daughter’s foster carer, or both (more than one may be appointed). The Council’s records should have been clearer on this point, but this poor record keeping did not cause Mrs B injustice. In any event, Mrs B has confirmed that she began the process of applying to the Court of Protection in December 2015 to be her daughter’s deputy for property and financial affairs. She engaged a solicitor to help her through the process.
Action in respect of the Court of Protection application
- On 20 May 2016 Mrs B sent an email to the Council’s complaints officer for social care in which she said her solicitor had sent forms associated with the Court of Protection application to the Council for completion in January but had received no response. The Council replied saying it had responded in January to correspondence received from Mrs B’s solicitor in December, and had received nothing further. However, the correspondence the Council was referring to here was from Mrs B’s former solicitor and it concerned a different issue: it did not relate to a Court of Protection application.
- Mrs B reports that she contacted the Council twice more in May and twice in July but received no responses. The Council says this was due to an error on its part in confirming who was dealing with the matter. The failure to reply to correspondence was fault.
- On 18 July Mrs B sent an email to the Council asking it for confirmation that it was not dealing with her complaint, as she wished to refer the matter to the Ombudsman. The Council replied the following day, asking her to clarify what her complaint was. Mrs B did not then reply until 15 September, when she said she had spoken to her solicitor who had confirmed she had heard nothing from the Council’s solicitor. The social care complaints officer then said that as Mrs B’s complaint concerned poor communication from the Council’s solicitor, it would be passed to the corporate complaints team for response.
What happened next
- On 18 September, the Council’s corporate complaints team contacted Mrs B’s solicitor. The Council said it had received no request for documentation. On 11 October Mrs B’s solicitors said Mrs B had instructed them to request the completion of Form COP3, and it sent this to the Council. The Council returned the completed form by email on 31 October, but on 7 November Mrs B’s solicitors said a hard copy of the ‘report’ was needed.
- A further exchange of emails followed. The Council at first said it was not sure what ‘report’ the solicitors were referring to; then on 20 November it was clarified they were referring to the Form COP3. The Council sent the hard copy of the signed and completed form to Mrs B’s solicitors by recorded delivery post on 23 November 2017.
- Ultimately, if Mrs B was unable to obtain a copy of the Form COP3 she could have served a witness statement instead. Notwithstanding this possibility, there was some delay on the part of the Council in the provision of the requested form in the necessary format, although there also appear to have been delay on the part of Mrs B’s solicitors.
The complaints process
- Mrs B complained to the Council about its handling of this matter. The evidence I have seen is unclear about when her complaint was first made. In an email to the Council on 18 July 2017 Mrs B said she had already informed the Council she wanted to make a formal complaint. The Council replied the following day asking her to confirm what her complaint was. Mrs B did not then reply until 15 September when she said her solicitor had heard nothing from the Council’s solicitor. The Council then confirmed, the same day, that the matter would be passed to the corporate complaints team for response.
- The corporate complaints process in place at this time had a 15-day timescale for response at each stage. The Council replied to Mrs B at stage one on 9 October, apologising for delay. Any delay is fault, but the extent of delay attributable to the Council in this case is unclear. Responses at stages two and three were provided within the relevant timescale. Mrs B is dissatisfied that the Council’s complaint investigation process did not involve communication with her at stages two and three. However, unlike the statutory complaints process for complaints about children’s social care, which Mrs B has used before, the Council’s corporate complaints process does not require the Council to contact the complaiaitn during the investigation process.
Injustice to Mrs B
- The delays in providing the required information to Mrs B’s solicitor, the failure to reply to correspondence in May and July, and the delay in providing a stage one complaint response meant that Mrs B was caused some avoidable frustration and time and trouble.
- In recognition of the injustice identified above, I recommended that within four weeks of the date of the decision on this complaint the Council issues Mrs B with a formal apology and pays her £150.
- The Council has agreed to my recommendation.
- I have completed my investigation on the basis set out above.
Investigator's decision on behalf of the Ombudsman