Decision Date: 27 August 2024
Summary
MX complained to the LGSCO about the Council’s response to complaints about MX’s mother’s care and treatment by staff from the Council, saying it had caused distress and uncertainty.
What happened
From 2004, MX and their sibling were appointed under an enduring power of attorney to act jointly and severally on their mother’s behalf [the report does not go into further detail about the mother’s exact condition, nor where she stayed, but it could be that she was at home before receiving daycare at a residential home before it became a permanent placement].
MX emailed the Council on 31 August 2023 saying they could not attend a meeting about their mother and was told that a meeting had been scheduled for the following Monday and that a social worker would copy MX into any correspondence. This meeting was once again re-scheduled, but the Council only advised MX’s sibling of the earlier time, assuming she would inform MX.
The LGSCO did not view this as poor communication amounting to fault as it was not unreasonable to assume MX’s sibling would let MX know of the rescheduled meeting’s details.
MX attended a later meeting virtually. MX’s sibling was recorded as the main carer for their mother who had been self-funding a twice-daily package of care at home. Daycare at a residential home was discussed.
MX’s sibling arranged a short-term residential placement privately with the residential home a couple of weeks later; the placement became permanent. MX was anxious to know what steps had been considered to avoid that having to be the outcome. The Council said that a decision had been made ‘WITH’ the mother and sibling that this was best, and it was referred to as a record of a best interests meeting. MX felt excluded and thought that their mother was afraid to voice her preference to move closer to MX.
MX complained in October 2023 that –
- the Council rescheduled a meeting that they (MX) were unable to attend;
- a social worker had treated MX’s mother “brutally”;
- MX was not copied into correspondence or advised about the mother’s move to respite care
In the same month, the Council said it received a safeguarding concern about MX’s contact with the mother. MX also raised concerns interactions between the sibling and mother, mentioning abuse [the report remains ambiguous about the safeguarding concern, but it may have been regarding a dispute between MX and their sibling].
MX did not wish to speak to the social worker and the Council was subsequently unable to contact MX on their phone.
MX tried making a further abuse complaint in mid-October to the Council but was kept on hold for 20 minutes and passed on to the wrong person. They then said they would still be willing to make a report, but the Council was subsequently unable to contact them.
At the end of October 2023, MX complained that a deprivation of liberty authorisation for the first placement which they eventually received from the Council was inaccurate and mispresented their comments. This was after the mother’s placement at a respite residential setting became permanent.
The Council emailed MX to say that its staff had made a recommendation to move their mother under Section 2 Mental Health Act 1983 to a psychiatric hospital but were waiting to physically move her as there were no suitable beds, and there had not been a decision regarding an alternative placement. A best interests meeting was planned regarding where MX’s mother should live if she was discharged. MX claimed they did not receive this email, but the LGSCO could not say whether this was the Council’s fault.
The day after the best interests meeting, which regarded whether MX’s mother should remain in her residential home or move to a care home where MX lived, there were further problems in communication. MX called the Council, and the Council tried returning the call four times. MX said their phone did not accept calls from withheld numbers, and the LGSCO did not find fault [– this was MX’s choice, presumably].
MX’s mother was transferred in early November 2023 under section 2, and then section 3 of the Mental Health Act.
The Council provided a comprehensive response to MX’s complaints towards the end of November regarding their concerns. There had been a proper Mental Capacity Assessment where MX’s mother was found to lack capacity around her residency and where her care and support needs should be met. A Best Interest decision was taken for MX’s mother to reside in a placement that allowed her to access 24-hour care and support which MX’s sibling agreed with, as the holder of the enduring power of attorney (severally as well as jointly) but it was recorded MX did not share this view.
The council apologised for the delay in responding to MX’s email about the content of the deprivation of liberty authorisation form, as well as for not requesting MX’s recording of their mother’s mistreatment by the social worker. The Council accepted that it should have copied MX in on its correspondence with their sibling, but that it had done so for the most important decisions.
What was found
The LGSCO found the Council at fault for its poor communication with MX.
From October to the end of November 2023, the Council delayed providing a response to MX’s complaint or seeking a copy of the recording of the social worker’s mistreatment of MS’s mother during an assessment. Given MX’s concerns about mistreatment, it was unclear why the complaint was not responded to on time.
There was also some confusion about contact between MX and the Council regarding the safeguarding concern and report of abuse and formal complaint.
The Council agreed that it occasionally contacted MX’s sibling without copying in MX as agreed. The LGSCO noted however that MS received a response in November addressing all the issues they had raised regarding their complaints about how the Council dealt with their attempt to report abuse and the content of a deprivation of liberty authorisation made in mid-October and the end of October 2023.
The Council agreed to seek a copy of MX’s recording of their mother’s mistreatment during an assessment. The Council already confirmed to MS that it added their comments on the deprivation of liberty authorisation as an addendum to the relevant record, which the LGSCO considered as providing a satisfactory remedy and that it would not therefore warrant further investigation by the LGSCO.
The LGSCO considered the action already taken or proposed by the Council as providing a remedy to MX’s complaint. The LGSCO still considered the avoidable uncertainty caused to MX about their mother’s care and wishes being considered. The LGSCO clarified that it would be too speculative for it to say whether the outcome would have been different without the faults that had been found.
The Council agreed to
- apologise to MX for poor complaint handling and communication;
- ask MX for a copy of the recording where their mother was mistreated;
- review the recording and advise MX of the outcome within a month; and
- offer MX the opportunity to contact a suitably qualified officer and schedule a telephone appointment if they still wish to report abuse.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Poor communication is pre-eminently suited to the LGSCO’s jurisdiction regarding maladministration (otherwise known as ‘fault’) as opposed to breach of the Care Act or other laws, which can be referred to the Monitoring Officer or go to found an application for permission to bring judicial review proceedings. So, MX did the right thing here in complaining.
With regard to what was known to be an ongoing dispute between the attorneys as to the best interests of their mother, the LGSCO was told that the mother’s detention under the Mental Health Act superseded the need for further work regarding best interests; the LGSCO accepted it was reasonable to assume the Council would otherwise have sought legal advice regarding any ongoing concerns or disputes.
The OPG confirmed to the Council in May 2024 that there was no lasting power of attorney, enduring power of attorney or deputy court order actively registered. The correspondence noted that an EPA did not need to be registered until the person who made it was definitely losing or had lost mental capacity, so that in effect, the consent of one of the joint and several attorneys had been enough to make it lawful to act upon it with regard to the initial placement being made permanent.
The report is not helpful in getting to the bottom of what was really going on, here, however, in our view. Beginning with some of the more structural deficiencies of the report itself, much of the information about the fault and what was agreed between the Council, complainant and LGSCO is placed within the “What happened” section.
This exacerbates the superficiality of the “My consideration” section, which only explicitly references fault once, does not cite any concrete authorities, and does not provide readers with a comprehensive understanding of the Council’s mistakes unless taken together with much of the detail in the “What happened” section, which is quite convoluted and ambiguous at times. For instance, the LGSCO omits a lot of detail about the safeguarding concern received by the Council and the subsequent complaints of abuse that MX wished to make, leaving the reader to guess. One may be led to believe that the abuse concern MX raised was perpetrated by the social worker or MX’s sibling (distinct from the “brutal” treatment during the assessment), but the report does not make this explicit enough.
Councils who adopt a more proactive approach to communication and recording of efforts made, with complainants, as part of their complaints procedures, practically guarantee approval from the LGSCO as far as communication is concerned, as evidenced in Derbyshire’s case, where the Council had clearly tried to contact MX repeatedly. Even so, failing to follow up or seek further evidence about a complaint within one month of it being received left the LGSCO, with no option but to find fault in this Council’s poor communication. This is an important obligation that arises when a Council is notified of poor social worker conduct because the Care Act functions depend on discharge by a competent officer.
We think that where joint and several attorneys and deputies are involved, it really should be required that both are communicated with, together and transparently. It’s not the same as where there are just two or more siblings, with one taking more responsibility than the other.
We think that it is difficult to see the extent MX did better out of going to the Ombudsman than the outcome of their complaint to the Council. Ultimately, we think that the most important thing for MX was that they were properly heard, as befits someone with a joint and several power of attorney.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Derbyshire County Council (23 015 602) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community when posted.
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