Summary: Mr F complained that the Council had failed to assess his social care needs since 2018 and failed to provide an independent advocate to support him since 2017. We found no fault in the advocacy offered by the Council or in its decision that it is not required to provide an advocate to assist someone to make a complaint. There was fault in not replying to an email but this did not cause significant injustice to Mr F.

The complaint

1. Mr F complained through his advocate (Mr D) that the Council had:
• failed to assess his social care needs since 2018; and
• failed to provide an independent advocate to support him since 2017.
2. As a result he has not had the care and support he requires. Mr F wants an apology, financial remedy, assessment of his care needs, and for the Council to reimburse the cost of the independent advocate’s fees.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. We provide a free service but must use public money carefully. We do not continue an investigation if we decide:
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation

(Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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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What I have and have not investigated

9. I have investigated events since April 2023. This is because the law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. Mr F complained to us in April 2024.
10. Mr D says Mr F’s mental health needs and lack of advocacy support impacted his ability to bring a complaint to the Ombudsman sooner. But Mr F has made frequent complaints to the Council over the years; in 2018 he represented another complainant in a complaint to the Ombudsman and in September 2022 the Council advised him he could bring his own complaint about advocacy to the Ombudsman. There is also reference to Mr F having engaged a solicitor and he has since engaged Mr D as a professional representative. I therefore consider it would have been reasonable for Mr F to have complained to the Ombudsman before April 2024. I find there are no good reasons to exercise my discretion to investigate events prior to April 2023.

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How I considered this complaint

11. I spoke to Mr D about the complaint and considered the information he sent, the Council’s response to my enquiries and:
• The Care Act 2014
• The Care and Support statutory guidance (“the Guidance”)
• The Care and Support (Independent Advocacy Support) (No. 2) Regulations 2014 (“the Regulations”)
12. Mr F 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

Care and support

13. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
14. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

Carer’s assessments

15. Where an individual provides care for another adult, and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. The assessment determines whether the carer has any needs which are eligible for support by the council. If a carer has eligible needs, the Act makes clear the local authority may meet those needs by providing a service directly to the adult needing care, such as respite.

Independent advocacy

16. Section 67 of the Care Act 2014 requires councils to arrange an independent advocate to facilitate the involvement of a person in their care and support assessment, the preparation and review of their care and support plan and/or their carer’s assessment, if two conditions are met:
• That if an independent advocate were not provided then the person would have substantial difficulty in being fully involved in these processes; and
• There is no appropriate individual available to support and represent the person’s wishes who is not paid or professionally engaged in providing care or treatment to the person or their carer.
17. The Guidance (paragraph 7.10) says councils must consider whether a person may have substantial difficulty in understanding relevant information, retaining information, using or weighing the information, or communicating their views, wishes and feelings.
18. The Guidance (paragraph 7.43) says advocates must have:
• A suitable level of appropriate experience.
• Appropriate training. Once appointed, all independent advocates should be expected to work towards the National Qualification in Independent Advocacy (level 3) within a year of being appointed, and to achieve it in a reasonable amount of time.
• Competency in the task.
• Integrity and good character.
• Arrangements for regular supervision.
19. The Regulations (Regulation 2(3)) say that for an advocate to be independent:
• the council must be satisfied that the person demonstrates the ability to act independently of the local authority; and
• the person must not be employed by, or otherwise working for, the local authority.
20. The Guidance (paragraph 7.59) says that councils must ensure that there is sufficient provision of independent advocacy to meet their obligations under the Care Act. We would expect them to do this by commissioning advocacy services.
21. The Council commissions a charity (“Charity X”) to provide independent advocacy. Charity X’s website shows it has an advocacy quality performance mark award and that it recruits advocates who hold the Level 3 Award in Independent Advocacy Practice or (if not) are required to gain this within 12 months. Its advocates have an understanding of the statutory regulations such as the Care Act, the Advocacy Code of Practice and the Advocacy Charter.

Complaint procedure

22. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
23. Councils should provide complainants, so far as is reasonably practical, with assistance to enable them to understand the procedure in relation to complaints; or advice on where they may obtain such assistance.

What happened

24. I have set out the key events; this is not meant to be a detailed chronology of everything that has happened. I have described some historic events for context.

Background

25. Mr F was an informal carer to two friends who have now died. Mr F raised many concerns with the Council about its care and support for his friends over a number of years. This included making complaints and coming to the Ombudsman.
26. In 2018 Mr F requested an independent advocate to support him in his carer’s assessment. In 2020 an independent advocate was provided and a carer’s assessment completed that Mr F was unhappy with.
27. In January 2022, the Council emailed Mr F saying it had discussed with him the advocacy services that were available to him. In March 2022, the Council emailed Mr F saying:

“The Council has tried to arrange advocacy services for you through several channels, including an independent resolution advocate as well as [three charities]. These have been offered in-line with, and meet, our obligations under the Care Act 2014. You have also been offered a Carer's Assessment.

As has been explained to you, [Charity X] is run completely independently from Merton Council, the commissioning of their advocacy services is in line with the Care Act in terms of independence and impartiality. The guidance in respect of the Care Act 2014 allows for the commissioning of advocacy services.

You would be entitled to receive advocacy for your own carer's assessment. The Council is not required to, and therefore does not, provide advocacy services for complaints; other advocacy services may be available to you.”

28. It also emailed him on 31 March 2022 asking him to let the Council know if he found any advocate that he trusted and was willing to use.
29. In September 2022, the Council offered Mr F alternative dispute resolution with an independent mediator to help him resolve his complaints with the Council. Mr F initially considered this option but later declined. In October 2022, the Council referred the matter to its legal department under its persistent complainer policy.

April 2023 to April 2024

30. Mr F asked the Council for an independent advocate to support him in his own care and support assessment in April 2023. I have not seen any evidence the Council responded to these emails.
31. Mr F appointed a professional representative (Mr D) who complained to the Council on 4 September 2023. The complaint was about a number of issues including that Mr F had not had a care and support assessment of his own needs and that the Council had failed to arrange an independent advocate for him. The complaint says the advocacy offered by the Council did not comply with the Care Act because advocates:
• Can’t be someone the person does not want to support them.
• Have to be sufficiently independent.
• Did not have sufficient knowledge and training of the Care Act and its Statutory Guidance.
• Did not meet the criteria of having to “work towards the National Qualification in Independent Advocacy (3614), or IAP City & Guilds level 4 within a year of being appointed and achieve it in a reasonable amount of time thereafter”.
• Did not have the QPM (Advocacy Quality Performance Mark) for providers of independent advocacy.
32. Mr D said as a result of a lack of advocacy support, Mr F had been unable to have a care and support assessment.
33. The Council responded to the complaint in January 2024. It repeated that it had previously offered Mr F independent advocacy provided by Charity X or by an advocate he deemed suitable but he had not suggested any. Although the Council did not consider that Mr F had substantial difficulty in being involved in his assessment, this offer stood and the Council would assess Mr F’s care and support needs when he wished it to.
34. Mr D brought Mr F’s complaint to the Ombudsman in April 2024. Mr F told me his concern was that Charity X was block-funded by the Council and therefore could not act independently.

My findings

35. Mr F asked the Council for a care and support assessment and an independent advocate in April 2023. I have seen no evidence that the Council replied to Mr F’s email prior to January 2024. This is fault.
36. However I do not consider this caused Mr F a significant injustice requiring a remedy and, as set out in paragraph 6, I have exercised my discretion not to investigate this further. This is because I have seen evidence that the Council had previously offered to arrange an independent advocate for Mr F during 2022 and he had refused this. On the balance of probabilities, I consider if the Council had replied in April 2023, Mr F would have again refused as he objected to the Council offering an advocate it had commissioned. He was therefore not caused a significant injustice.
37. The Council replied in January 2024 that it had offered to arrange advocacy previously but Mr F had declined.
38. The Council’s advocacy provider is Charity X. Mr F has refused this offer as he has concerns about Charity X. I have reviewed Charity X’s provision. There is no evidence that its advocates are not suitably trained, experienced or competent or that they do not have integrity and supervision arrangements. There is evidence that Charity X has a quality performance mark and requires its advocates to be trained as set out in the Guidance.
39. The law requires councils to arrange an independent advocate in certain circumstances. My view is that “arranging” includes funding and block-funding, so the fact that the Council would pay Charity X cannot mean it is not independent as defined by the Act. An advocate working for an independent organisation which is commissioned by the Council to provide a service is not employed by the Council. Councils must be satisfied that the advocate demonstrates the ability to act independently of the local authority and must not be employed by the local authority. I have seen no evidence that the Council considered Charity X could not act independently or that its advocates were employed by the Council.
40. I find there was no fault by the Council in offering Mr F independent advocacy from Charity X.
41. Mr F says the advocate cannot be a person “he does not want”. I have seen no evidence of this requirement in the Act, Guidance or Regulations. But I consider any such requirement would relate to the individual advocate rather than the organisation, as it would not be for the individual to determine which organisation the Council commissions. It would be for Charity X (or other advocacy provider), not the Council, to agree with Mr F which advocate he worked with.
42. The Council’s letter of January 2024 says it does not consider Mr F meets the criteria for independent advocacy set out in the Act. There is no fault in the way the Council determined this. Nevertheless, the Council has offered to arrange an advocate.
43. The Council says it is not required to provide an independent advocate to support Mr F to complain against the Council. Instead it has offered independent mediation. Whilst the Guidance says an advocate may challenge a Council’s decision, there is no requirement for one to be appointed to assist a person in making a complaint. I find no fault in the Council’s decision that it is not required to appoint an advocate for the complaint process.
44. The Council offered to arrange any advocate that Mr F deemed suitable to help him with a care and support assessment. This offer stands if Mr F wishes to suggest an advocate to the Council.

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Final decision

45. There was fault by the Council but it did not cause significant injustice. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman