Summary: Mr B says Company A, acting for the Council, failed to apply for Attendance Allowance for Mr C. Company A is not completing an administrative function on behalf of the Council, so the Council is not responsible for the actions of Company A. There was no fault by the Council in referring Mr C to a professional company to help him manage his finances. The Ombudsman does not have jurisdiction to investigate the actions of Company A.

The complaint

1. The complainant, who I will call Mr B, says the Council is responsible for failing to claim Attendance Allowance for Mr C between 30 April 2018 and 1 September 2019. Mr B says the Council was responsible for Mr C’s financial affairs and cannot outsource its responsibility because it outsourced the work to a private company (Company A). Mr B says Mr C lost out on over £6,000 of benefits because of the Council’s actions.

Back to top

The Ombudsman’s role and powers

2. 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). Mr B is Mr C’s court appointed deputy in matters concerning his property and affairs.
3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as a money management service like Company A. (Local Government Act 1974, sections 25 and 34A, as amended)
4. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
5. If we are satisfied with a council’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)

Back to top

How I considered this complaint

6. I considered information from Mr B, the Council and Company A. I considered the Care Act 2014 and associated statutory guidance.
7. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. 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.
10. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised.
11. Mr C lived alone; friends helped him manage his finances. Mr C went into hospital, the Council was involved in assessing his needs so he could be discharged. The Council was concerned about how Mr C was managing at home. The Council arranged a stay in a care home so it could assess Mr C’s longer term needs for care and accommodation, including his capacity to make decisions about these matters.
12. The actions we can investigate are those which are being carried out in the exercise of a council’s administrative functions. In this case the Council was responsible for assessing Mr C’s care and support needs and made a best interest decision in accordance with the Mental Capacity Act 2005. The Council decided Mr C did not have capacity to manage his financial affairs. The Council decided Mr C needed an appointeeship service and managed account as an interim measure, and an application for deputyship for long term management of finances and property affairs. There is no fault in how the Council carried out its assessments, and decision making.
13. The Council explains until an appointee is in place, there was no-one with the legal power to act on Mr C’s behalf or to manage his benefits. The Council says it is not the social workers role to apply for benefits, and the Council does not have a statutory duty to claim benefits on behalf of people with care needs. Councils can apply to become appointees, but they do not have to do so. It would usually be a last resort if there was no family or friends, and it was not practicable to engage the services of a solicitor or other approved agency.
14. Mr C’s friends were supporting him with his finances until June 2018. The Council promptly made a referral to a money management service to support Mr C once it established this was needed. In this case I find no fault in the Council’s decision there was someone else more appropriate to be appointee – and that was Company A who is a specialist money management service.
15. The Council has a responsibility under the Care Act to provide information and advice about care support, which includes eligibility and applying for benefits. The Council might give this information and advice directly or might signpost individuals to suitable bodies. The Council’s responsibility under the Care Act is to identify people who may benefit from financial information and advice independent of the local authority and actively facilitate those people to access it.
16. The Council says it usually directs people to Age UK for advice and benefits checks, or the Department for Work and Pensions (DWP). In this case, because Mr C lacked capacity to manage his finances the Council explained to him the support a money management service could provide with managing his DWP benefits. The Council made a referral to Company A to meet the requirement of the Care Act to actively facilitate access to financial advice and support.
17. The Council referred Mr C to Company A who can act as an appointee and handle a managed account on behalf of vulnerable individuals. Company A is well established, with experienced, qualified staff. The Council has used the company many times. There was no reason for the Council to doubt that Company A would act in Mr C’s best interests. I find no fault in the Council making this referral.
18. An “appointee” is responsible for making and maintaining any benefit or pension claims on behalf of someone who is incapable of managing their own finances. There can only be one appointee acting on behalf of that person at any one time. The appointee must spend the benefit in the claimant's best interests.
19. Appointeeship is not an administrative function of a council. It is the Department for Work and Pensions (DWP) who decide whether someone needs an appointee and whether the person applying is suitable. It also monitors appointees and investigates if someone has concerns about the appointee's actions.
20. The Council identified Mr C may need someone to act as an appointee and made the referral to Company A; it was not responsible for the action taken by Company A. Company A was not carrying out a function of the Council when it acted as appointee for Mr C. The Council acted properly by referring Mr C to a suitable professional company to help him with his finances, in line with the best interest decision it took. The Council has provided evidence that it raised with Company A that Mr C might be eligible for Attendance Allowance. It is reasonable for the Council to expect Company A to act in Mr C’s best interests.
21. Company A is not within the Ombudsman’s jurisdiction, so we cannot investigate whether it was at fault in not applying for Attendance Allowance for Mr C. Mr B has raised the issues with Company A and the DWP.
22. The Council should consider its use of Company A in future.

Back to top

Final decision

23. I have completed my investigation on the basis there was no fault by the Council in referring Mr C to Company A in accordance with its best interest decision, and to meet the Care Act requirement of providing information and advice. The Council is not responsible for the actions of Company A. Company A is not within the Ombudsman’s jurisdiction so we cannot investigate the failure to apply for Attendance Allowance.

Back to top

Investigator's decision on behalf of the Ombudsman