Summary: Miss X complained about how the Council handled an Occupational Therapy assessment for her brother, Mr Y. The Council was at fault for failing to properly consider Mr Y’s best interests, which caused him an injustice. It was not at fault in how it handled the Occupational Therapy assessment. The Council will consider whether it needs to take action to protect Mr Y’s best interests.

The complaint

1. Miss X complained about how the Council handled an Occupational Therapy assessment it carried out for her brother, Mr Y. Miss X said the Council was withholding support for Mr Y, discriminating against him, and being misleading. Miss X also complained the Council took four months to register her complaint.
2. Miss X said this caused her distress and frustration and means Mr Y is living in unacceptable conditions.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Mental capacity and best interests

8. 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.
9. The Act introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf.
10. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
11. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
12. If a council has concerns someone with LPA is not acting in the best interests of the donor, then they may apply to the Office of the Public Guardian (OPG). The OPG has the power to investigate attorneys and take action where concerns are substantiated.

Adult social care complaints

13. According to (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009), councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:

• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

14. The Council’s complaints procedure for adult social care complaints states it will acknowledge a complaint within three working days and provide a response within 20 working days.

What happened

Background

15. At the time of the matters I have investigated, Mr Y was a young adult. He has complex disabilities which mean he does not have capacity to make decisions about his welfare and needs significant care support to maintain his health and wellbeing. Mr Y’s mother, Mrs W, has LPA for health and welfare decisions. His sister, Miss X, acts as his representative during contact with the Council.
16. Mr Y lives with his family in a Council owned property. His bedroom is too small to allow his family and care workers to support him easily or to allow him to use his wheelchair to access the rest of the home. As a result, Mr Y is largely unable to leave his bed.
17. A previous Ombudsman’s investigation found:
• the Council carried out an assessment in February 2020 to explore what adaptations could be made to improve access in Mr Y’s bedroom and wider home. It proposed some adaptations in October 2020;
• the Council delayed sending Miss X the outcome of its assessment until autumn 2021;
• this did not cause Mr Y an injustice because once Miss X had the assessment, she did not agree with its contents or to the proposed adaptations stemming from it; and
• it was open to Miss X to accept the Council’s offer of a new assessment of Mr Y’s needs.

New OT assessment and proposed adaptations

18. In March and April 2022, a Council Occupational Therapist (OT) and surveyor visited Mr Y’s home to assess his needs and consider what adaptations could be carried out to improve his living situation.
19. The Council drew up a list of five potential options, which it sent to Miss X in late May 2022. Three of the options were adaptations to make to the family home. The final two were options to rehouse the family.
20. The OT later sent drawing plans for option one along with the surveyor’s report, which noted only option one was viable. Miss X told the Council she was unhappy it had listed options two and three in its late May email if they were not possible.
21. In late June, the Council told Miss X that, after consulting with its housing adaptation team, it had concluded option one was not feasible because it would not give much more space in Mr Y’s bedroom. It said the housing adaptations team and OT needed to visit the family home again to carry out a detailed survey of the house to decide what would and would not work.
22. Miss X and her family did not agree to this request, which Miss X viewed as the Council intending to reassess Mr Y. The Council again asked Miss X to allow the OT and surveyor to take detailed measurements of Mr Y’s home, but Miss X did not agree.
23. From August 2022 to January 2023, Miss X commissioned an independent OT and surveyor, who recommended adaptations similar to the Council’s option three, with the addition of an extension for more space.
24. Miss X complained to the Council in January 2023. She reiterated much of a previous complaint the Council had responded to and the Ombudsman was investigating at the time. She also said:
• the Council had sent her the list of five proposals when the surveyor’s report said only option one was feasible;
• the Council had subsequently decided option one wouldn’t work and said it needed to reassess Mr Y; and
• her family could not be rehoused because they cared for Mr Y as a group.
25. In late January, the Council asked Miss X to clarify if she was complaining about new issues. Miss X said she was, and the old information in her complaint was contextual to prove the Council had discriminated against Mr Y as a Disabled person.
26. The Council said it would not reply to her complaint because the Ombudsman was considering it. Miss X replied to the Council to say that was not the case and reiterated her complaint was about disability discrimination. In late February, the Council told Miss X it needed her to be very specific about when she felt it had discriminated against Mr Y and what she wanted from the complaint.
27. In late March 2023, the Council OT asked Miss X when she and a surveyor could visit to take in-depth measurements and explore adaptations.
28. Miss X wrote to the Council to ask it to stop any OT’s contacting her until the Council had resolved her complaint. She sent her concerns about disability discrimination to the complaints team the same day and confirmed she sought accountability and answers.
29. The Council told Miss X several times that it was trying to identify if any discrimination had occurred before it would register a complaint. It ultimately registered her complaint in mid-May 2023. It recommended that in the meantime, she allow the OT and surveyor to visit Mr Y and take measurements. Miss X refused on behalf of Mr Y and her family.
30. The Council responded to Miss X’s complaint in early June 2023 to say it recognised her frustration, but it needed to take the detailed measurements to progress the adaptations.
31. Miss X complained to the Ombudsman. Her complaint included that the surveyor had supported option one in their report despite not doing so during the visit.
32. In November 2023 I asked the Council whether it had considered if Mrs W and Miss X were acting in Mr Y’s best interests, given almost eighteen months had passed since it first asked to visit the family home to take detailed measurements. The Council said the OT does not doubt the family are trying to provide care and support in Mr Y’s best interests.

Findings

Adaptations

33. When the Council sent Miss X the list of five proposals after the March and April 2022 OT assessment and survey, it gave the impression that all of the options were feasible. However, the Council had already discounted options two and three based on the surveyor’s report. While it would have been preferable for the Council to have removed those options from the proposal list, or explained the options were considered and why they were not feasible, it does not warrant a finding of fault.
34. Subsequently, the Council concluded option one was not viable, and it needed more detailed measurements of Mr Y’s home in order to explore other possible adaptations. Miss X feels this is a reassessment of Mr Y’s needs and has not agreed to allowing the Council to visit. However, the Council is not seeking to reassess Mr Y’s needs. It accepts Mr Y needs more space to improve his wellbeing and wants to take measurements to look at other options for helping him.
35. Mr Y’s family had previously refused to consider rehousing proposals and the Council has decided the three adaptation options are not feasible. It is understandable that the Council now needs to take more measurements in order to come up with new solutions, particularly considering the complexity of Mr Y’s needs. While Miss X’s private OT recommended the Council swap Mr Y’s bedroom for the kitchen and build an extension to provide more space, it is for the Council to decide what adaptations are appropriate. In order to do so, it needs access to Mr Y’s home.
36. Miss X questioned why the surveyor’s report supported option one, when they did not support that option during the visit to Mr Y. I do not have a record of what was discussed at the visit, but in any event, professionals are entitled to change their views on further consideration of the facts. The Council was not at fault.

Mr Y’s best interests

37. Mr Y is a vulnerable individual with significant needs for care and support. The Council first assessed him for adaptations in early 2020 and, almost four years later, still does not have an agreed proposal for works. It has been almost eighteen months since the Council first asked Miss X for access to the family home to take further measurements so it can prepare new proposals. It has not yet had access.
38. It is evident the relationship between Miss X and the Council is not a positive one, and this is impacting on the Council’s ability to progress any adaptations. I would therefore expect to see evidence of the Council considering what was in Mr Y’s best interests and what action it should take, if any, to progress any adaptations and improve his wellbeing as a result. While the Council OT told me she was confident Mr Y’s family were trying to provide care and support in Mr Y’s best interests, I am not persuaded this is sufficient evidence to show Council properly considered the matter. This was fault and meant any action the Council does decide to take has been delayed.

Complaints handling

39. The Council failed to identify Miss X’s January 2023 contained new elements which were not covered by the Ombudsman’s investigation. It therefore refused to act on Miss X’s complaint. This was fault.
40. Miss X included in her complaint that she felt the Council had discriminated against Mr Y. Disability discrimination is a significant legal issue so the Council sought more information from her before deciding whether to register a new complaint or to respond to her claim through legal routes. Miss X took around a month to send details of when she felt discrimination had occurred, but the Council then took a further six weeks to decide it would register a complaint. That was too long and was fault. The faults in how the Council handled Miss X’s complaint caused her undue frustration and time and trouble.

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Agreed action

41. By 31 January 2024 the Council will take the following action.
1. Apologise to Miss X for the frustration she felt and time and trouble she went to because of its poor complaints handling. The Council will refer to the Ombudsman’s guidance on remedies, which sets out our expectations on apologies.
2. Consider the events since its first assessment in early 2020 and decide what action it should take, if any, to protect Mr Y’s best interests. The Council will record its consideration in appropriate detail.
42. The Council will provide us with evidence it has complied with the above action.

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Final decision

43. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman