The Ombudsman's final decision
Summary: Ms C complains the Council failed to support her daughter with claiming benefits which resulted in rent arrears. The Council is at fault for failing to take preventative action, properly review needs and deal with Ms C’s complaint properly. This has caused uncertainty, time, trouble, and frustration. To remedy the complaint the Council has agreed to make Ms C a symbolic payment, provide a reminder to staff about person centred reviews, and the duty to take preventative action.
The complaint
The complainant who I refer to as Ms C complains on behalf of her daughter who I call Ms D. Ms C complains the Council failed to support Ms D to apply for housing benefit which resulted in housing arrears. Ms C also complains the Council failed to deal with her complaint properly.
Because of these failures Ms C says Ms D had distress and anxiety from a threat of eviction because of the arrears. Ms D has a debt of over £1000 which she needs to repay.
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 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) 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.
We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended) We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended) 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)
How I considered this complaint
I spoke with Ms C and considered information she sent. I made enquiries of the Council and considered:- the Council’s response; Ms D’s tenancy agreement; Care Act 2014 and the associated Care and Support Statutory Guidance; Council’s case recording; Ms D’s reviews and support plans; considered comments from a draft decision.
Ms C and the Council had an opportunity to comment on two draft decisions. I considered any comments received before making a final decision.
What I found
Background information Ms D lived with Ms C. Ms D has learning difficulties and needs support to live in the community. Ms D wanted to live independently and in October 2020 moved into a flat in a supported living scheme, B. The Council also provided Ms D with a personal budget to support her. A third party organisation, Z, provided the support. Ms C acts as Ms D’s Lasting Power of Attorney for finances, this means she can help Ms D make decisions about her finances and in making benefit applications.
What should have happened The Care Act 2014 sets out a preventative duty for councils. The Care and Support Statutory Guidance, the “Guidance” says “2.1 It is critical to the vision in the Care Act that the care and support system works to actively promote wellbeing and independence, and does not just wait to respond when people reach a crisis point.”
Paragraph 2.7 describes early intervention, “These are more targeted interventions aimed at individuals who have an increased risk of developing needs, where the provision of services, resources or facilities may help slow down or reduce any further deterioration or prevent other needs from developing. Some early support can help stop a person’s life tipping into crisis, for example helping someone with a learning disability with moderate needs manage their money,….”
The Guidance says that once a support plan is in place the Council must review it within six to eight weeks of the agreed plan. The support plan should include dates for review. Reviews should then occur yearly or more often if asked.
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 (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity.
The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. An assessment of someone’s capacity is decision and time specific.
Ms D’s tenancy agreement says she will be responsible to pay the rent. Nothing in the contract puts the onus on the landlord to take any action in supporting people to claim benefits.
What happened The case records say an officer was due to visit Ms D to go through the tenancy agreement and to ensure her understanding before Ms D moved in. There is no record of the visit.
On 19 November 2020 the Council records a support worker at B, was visiting Ms D the next day to help with her housing benefit claim. The B employed the support worker and was not providing a Council commissioned service. The Council arranged a review for December but Ms C could not attend. There is no record of a formal review but it appears a visit did take place and some follow up action taken. The officer records the Council should complete a review in three months as the December review was not as thorough as it should have been.
In May 2021 Ms C contacted the Council concerned Ms D was in rent arrears as no one had claimed housing benefit and the landlord had threatened Ms D with eviction. B told the Council a worker had completed the housing benefit form in November but did not send it until April 2021. Ms D was now £3000 in rent arrears. The Council intervened and advised Ms D she could get some arrears paid if she applied for discretionary housing benefit. It also referred Ms C to a benefit advice agency.
Ms C complained to the Council in August. As part of the internal communication within the Council it records B, “has informed me that an agreement has been reached with regard to non payment of rent. There has been a mistake made by B (sic), who did not process Ms D’s (sic) housing benefit claim properly back in October when she moved in…..Things got to the point that Ms D (sic) was given an eviction notice…….Issue has been raised by the social worker as to why this was allowed to happen”. Ms D agreed to repay the arrears as a set weekly amount which prevented an eviction.
Ms C complained again on 14 February 2022. The Council agreed to send a substantive response by 14 March. An officer contacted Ms C late in March but by 28 April she had yet to receive a substantive response and chased the Council.
The Council responded the next day saying B and Ms C were responsible for making a claim for housing benefit and it was not responsible for any short fall. The Council’s process allowed an opportunity for Ms D to request a review of its decision. Ms C asked the Council for a review on 20 May, setting out her reasons.
In November the Council realised it had not progressed Ms C’s complaint and after contacting Ms C reviewed the complaint decision. It sent a response on 21 December apologising for the delay but did not address the issue of the housing benefit.
In response to my enquiries the Council says currently Ms D would not have capacity to understand and sign a tenancy agreement. In response to a draft decision on the complaint the Council says the officer involved at the time considered Ms D had capacity to understand a tenancy agreement and had gone through the agreement in an easy read format.
Was there fault causing injustice?
The Council is at fault for failing to meet its preventative duties under the Care Act as it did not advise Ms C or Ms D about the need to claim housing benefit. The Council says Ms C as the LPA was responsible for making a claim for housing benefit. An LPA is a lay person supporting another person with their finances. They too would need advice and guidance about benefits. I therefore consider even though Ms C holds an LPA the Council still had a responsibility to provide advice or signpost to a suitable advice agency. There is no evidence the Council provided this advice directly. However I cannot say the omission caused Ms D injustice as Ms C was aware by her liaison with B that Ms D needed to claim housing benefit.
The Council says an officer went through a tenancy agreement with Ms D in an easy read format and concluded Ms D had capacity to understand the contents. There is no contemporaneous record of this occurring I am therefore unable to say the Council completed this action. Asking Ms D to sign a tenancy agreement without properly considering whether Ms D had capacity to understand the conditions within the agreement, including how she would pay rent, is fault.
The Council completed a light touch review. The officer recognised the shortcomings in this review and suggested a further review in three months. This did not occur and when Ms C contacted the Council Ms D was in rent arrears. The failure to carry out a thorough review when Ms D was making a significant transition was fault. Had the Council completed a proper review it is more likely than not, it would have identified housing benefit was not in place and alerted Ms C, the Council or B to act.
Ms C has the uncertainty that but for the faults identified the Council could have prevented the build-up of arrears.
However it is clear from the case recording that it was an employee from B who agreed to make the benefit claim but forgot to do so. The Council does not commission B and therefore I cannot make a finding of fault against it or recommend a remedy. While I have recommended an uncertainty payment I do not consider the Council is responsible for the arrears. This is because B accepts fault in failing to send the claim form.
The Council is at fault for failing to deal with the complaint promptly. The review of the complaint did not address the specific issue about housing benefit and is incomplete. This caused Ms C time, trouble, and frustration the Council was not listening or responding to her concerns. In response to my enquiries the Council says there was miscommunication between different departments within the Council which delayed the review. The Council has reminded departments about when and how to respond to complaints. The Council says the complaints team is now more active in ensuring smooth transition between Council departments and that complaint responses are sent within the Council’s timescales and are of good quality. These service improvements are welcomed.
Agreed action
I have found fault in the actions of the Council which has caused Ms C and Ms D injustice. I consider the agreed actions below are suitable to remedy the personal injustice caused by these faults and to improve future practice.
Within one month of the final decision the Council will:- apologise to Ms C and Ms D for: the frustration, and anxiety caused by delays in the complaint handling; and, the uncertainty caused by failing to properly review Ms D’s needs and provide preventative advice and support with her housing benefit; pay Ms C £350 this is in recognition of the time, trouble, uncertainty, and distress caused by the Council’s failures.
Within three months of the final decision the Council will: remind staff either through team meetings or a staff circular about the importance of thorough reviews especially at times of significant transition; remind staff either through team meetings or a staff circular about the preventative duty and the referral for benefit advice where suitable; remind staff either through team meetings or a staff circular about the need to consider capacity when supporting people with tenancy agreements.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have found fault with the Council’s actions which has caused injustice. I consider the agreed actions above are suitable to remedy the complaint. I have completed my investigation and closed the complaint on this basis.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman