Office of the Public Guardian

3. Mr A complained about the OPG and its investigation into a safeguarding concern. He complained:

A. The safeguarding investigation was based on lies and the OPG has not explained the reasons which prompted the investigation B. The 12-week investigation turned into a 66-week investigation and the OPG has not explained why C. The investigation went on for a further ten months after he received an email stating it had concluded

4. Mr A explained that the situation left him suicidal. He said the longstanding nature of the OPG’s investigation severely impacted his mental health.

5. Mr A wants answers to his questions and an apology from the investigator.

6. The OPG helps people in England and Wales to stay in control of decisions about their health and finance and make important decisions for others who cannot decide for themselves. The Public Guardian (supported by the OPG) has a legal duty to supervise deputies appointed by the court to make decisions on behalf of someone who lacks capacity. It is responsible for looking into reports of abuse against registered attorneys, deputies or guardians. It carries out the legal functions of the Mental Capacity Act 2005 (the MCA) and the Guardianship (Missing Persons) Act 2017.

7. Mr A was appointed to act as attorney for his mother Mrs W in her lasting powers of attorney which the OPG registered in September 2013.

8. In March 2020, concerns about Mr A’s conduct as an attorney were brought to the OPG’s attention and it started an investigation. It wrote to Mr A on 1 April 2020 and requested information to be provided by 15 April 2020.

9. The OPG aimed to deal with this investigation by 3 July 2020, but its letter explained how the impact of the Covid-19 pandemic would affect its service. This letter also set out the OPG’s legal authority, its confidentiality and what happens at the end of its investigation. It enclosed its OPG5 leaflet entitled ‘Factsheet: Office of the Public Guardian investigations’.

10. Mr A complained to the OPG on 13 July 2020; to which it responded on 20 July 2020. He complained again on 31 July 2020 about the length of time it was taking to conclude the investigation. The OPG explained in its response on 12 August 2020, that the ongoing pandemic affected its ability to conduct court visits and the investigator was awaiting the court visitor’s report. It reiterated that it endeavoured to complete its investigations in 14 weeks, but these can take longer if there is information outstanding or required to reach a conclusion.

11. A Court of Protection visitor completed their visit with Mrs W via video call on 4 and 5 August 2020.

12. The OPG reached its conclusions on 24 August 2020, and these were signed off on 1 September. A letter was sent to Mr A explaining these and confirmed that although the OPG did not have any concerns about his general conduct as an attorney; it did identify areas where action was required to ensure that he continued to meet the requirements of the MCA and the Mental Capacity Act 2005 Code of Practice (the Code).

13. It required Mr A to: • Account with the OPG again in 3 months time showing that all transactions should be for the benefit for the benefit of the donor and receipted.

• The accounts should show that Mr A is contributing to the donor’s utilities, food shopping and paying rent to live at the property.

• If Mr A does not agree and wants to offset the cost of the care he provides his share of household bills, he must apply to the Court of Protection to have this authorised.

• Accounts should also show the rental income from the donors Barking property accruing in the donor’s account.

• In 30 days, he must provide evidence that the donor’s daughter’s name has been removed from a joint account.

• The OPG would refer to safeguarding at the local authority to determine if the donor’s health needs were being met.

14. This is called ‘further action’ and the investigator is required to continue to monitor the case until an attorney has completed all of its recommendations. Even in cases where it is generally happy that the attorney is acting in the best interests of a donor.

15. On 7 December 2020, the OPG confirmed that the attorney provided further information regarding rental income and that Mr A was contributing £50.00 towards household costs. Mr A confirmed that he would apply to the Court of Protection to have the household costs offset against the care he provided to Mrs W.

16. Mr A continued to make complaints to the OPG about its involvement in his mother’s affairs and the impact that its ongoing involvement was having.

17. On 7 July 2021, Mr A’s solicitor confirmed that the Court of Protection had received its application to have the household costs offset. This allowed the OPG to formally close its investigation.

18. Mr A complained to his MP on 20 November 2021 and his MP brought a complaint to PHSO on 26 January 2021.

Issue A - The safeguarding investigation was based on lies and the OPG has not explained the reasons which prompted the investigation

20. Before we decide if we should investigate a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and, we have not found any indications that something has gone wrong.

21. Our Principles for Good Administration say that to be customer focussed, public bodies should ensure that customers are clear about their entitlements; about what they can and cannot expect from the public body; and about their own responsibilities.

22. We can see from the initial letter sent to Mr A on 1 April 2020, and its subsequent correspondence, that the OPG set out its role and responsibilities. It explained numerous times that it is legally obliged under the MCA to investigate any concerns raised regarding an attorney’s conduct – and it has a duty of care to safeguard those who have a registered LPA in place.

23. We are assured that the OPG made clear its role and responsibilities to Mr A from the start.

24. Mr A made it clear in his correspondence to us that he feels the OPG’s investigation into is conduct was based on lies and the investigator was coerced by someone with an ulterior motive. He said that the OPG never told him why he was being investigated and we appreciate that this will have heightened his feelings. Even more so given the OPG’s findings.

25. But as the OPG explained in its correspondence, it is only obliged to disclose information as outlined in Regulation 31 and 32 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulation 2007.

26. These regulations do not allow the OPG to disclose the details of the concern raiser of the concerns raised. Regulation 32(6) states: (6) In determining whether to disclose any additional information to P, the Public Guardian must, in particular, have regard to— (a)the connection between P and the applicant; (b)the reasons for requesting the information (in particular, why the information cannot or should not be obtained directly from P); (c)the benefit to P, or any detriment he may suffer, if a disclosure is made; and (d)any detriment that another person may suffer if a disclosure is made

27. With this part of Mr A’s complaint, we find no indications of maladministration in the OPG’s decision to investigate attorney conduct. The OPG is duty bound to investigate concerns, regardless of whether the concern can be substantiated. Additionally, we cannot say that by not disclosing the information Mr A wants it to, that the OPG acted outside of its guidance or Our Principles.

Issue B– The 12-week investigation turned into a 66-week investigation and the OPG has not explained why.

And Issue C – The investigation went on for a further 10 months after he received an email stating it had concluded.

28. For clarity, the timescales mentioned with this part of the complaint, relate to two separate parts of the OPG investigation. The 12-week turning to 66 weeks being the entire period the OPG investigation was open. And the 10 months being the further action part of the investigation.

29. Our Principles for Good Administration say that public bodies should do what they say they are going to do. If they make a commitment to do something, they should keep to it, or explain why they cannot. They should meet their published service standards, or let customers know if they cannot.

Investigation

30. From the information we have seen, we can see that the OPG began its investigation of Mr A when the UK first entered its national lockdown, which placed restrictions on individual movements. The initial letter sent on 1 April 2020, explained that because of lockdown, the investigation may take longer that its original ambition of 14 weeks. It sent its conclusions in a letter dated 3 September 2020; 22 weeks and 1 day later.

31. Throughout its correspondence with Mr A, it made clear that the delays to the investigation he experienced were due to the constraints the organisation faced due to the national lockdowns and its inability to complete face-to-face visits with donors.

32. We are satisfied that the OPG informed Mr A at the earliest opportunity of the impact the national lockdown would have on its ability to deliver its service and meet its ambitions. By doing so, the OPG acted in line with Our Principles, and we cannot find indications of a failing regarding the investigation stage of its process.

Further action

33. Although the OPG were satisfied with the general conduct of Mr A as an attorney, it did require him to complete actions to ensure that he was compliant with the MCA and the Code. As such, the case entered further action. The letter of 3 September 2017 said that the investigation had ended and gave Mr A until 1 October 2020 and 26 November 2020 to comply with the actions required.

34. We can see that the OPG acknowledged in March 2021 that the wording of this letter did cause Mr A confusion, as the investigation could not formally close until its actions had been complied with. It flagged this to its Head of Supervision and Investigation to review the correspondence as it wanted to ‘convey clear information to its customers’.

35. Regarding the ‘further action’ required of Mr A the evidence shows that he had complied with some of the actions by 7 December 2020; but it took Mr A until 7 July 2021 to confirm that his application to offset his housing costs against the care he provides to his mother, had been received by the Court of Protection. Some 10 months later.

36. As we have said, Our Principles make it clear that public bodies should ensure that customers are clear about their own responsibilities. Although we understand that Mr A was aggrieved by the investigation into his conduct as an attorney and there may have been mitigating circumstances involved, this doesn’t not take away from the fact that as an attorney he needed to take action to ensure that he was compliant with the MCA and the associated code.

37. The OPG provided Mr A with deadlines, but he did not comply with all of the actions until July 2021. The OPG could not formally close the investigation until this point. Based on the information we have seen; we cannot account the 10-month delay to the actions of the OPG. Therefore, we will take no further action regarding this part of Mr A’s complaint.

Summary

38. It is clear from what Mr A told us how upsetting he found these events. It would not have been pleasant for him to learn he had been accused of potential wrongdoing when he had simply been trying to act in his mother’s best interests. We have no doubt this situation would have been made worse by the length of time the investigation took. We hope our enquiries have shown him why the OPG could not have ignored the allegations it received, however unfounded they proved to be, and, in investigating, was simply acting in line with its legal obligations. We also hope we have now explained why this investigation took as long as it did. We further hope we have reassured him that the OPG was not attempting to question his integrity, although we can understand why it may not have looked that way at the time. We would like to thank Mr A for bringing his concerns to our attention.

1. We have carefully considered Mr A’s complaint about the Office of the Public Guardian (the OPG) and the way in which it dealt with its investigation of his conduct as an attorney. We cannot find an indication of a failing in the OPG’s decision making.

2. We have therefore decided not to investigate Mr A’s concerns. We appreciate that this decision will be disappointing, even more so after the circumstances he described at the time of the investigation. We explain the reasons for our decision below.