Summary: Mr C complained about the process through which the Council assessed his mother’s finances to determine when she would reach the threshold to be eligible for Council support. We found there was some delay by the Council that should have been avoided, for which the Council has agreed to apologise. However, there was no fault with the Council’s decision to refer Mrs M’s case to the Office of the Public Guardian (OPG).

The complaint

1. The complainant, whom I shall call Mr C, complained to us on behalf of his mother, whom I shall call Mrs M. Mr C complains that:
1. There was a delay by the Council in reaching its conclusion that his mother’s capital had reduced to £23,250 as of May 2021.
2. The Council’s decision, that a financial gift from his mother was a deprivation of capital, was wrong.
3. The Council should not have referred his mother’s case to the Office of the Public Guardian (OPG).
4. The Council failed to involve his mother in the financial assessment.
5. A Council officer, who called his mother in July 2020, used a false name.
2. Mr C said that, as a result of the delays, his mother’s remaining capital reduced to far below £23,250 and she would soon no longer have funds to pay her fees, putting her placement at the care home at risk. Mr C said that, as the delay has been due to the Council, it should pay the care home fees until a Deferred Payments Agreement (DPA) can start and cover the fees.

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What I have investigated

3. I decided to investigate all the complaint issues above, except the second complaint (see paragraph 46 below).

The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(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)

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How I considered this complaint

6. I considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

Relevant legislation and guidance

7. The Care Act Guidance says that, when undertaking a financial assessment, a council may identify circumstances that suggest that a person may have deliberately deprived themselves of assets to reduce the level of the contribution towards the cost of their care; for instance by making large gifts from their savings.
8. If a council decides that a person has deliberately deprived themselves of assets to avoid or reduce a charge for care and support, they will usually decide to treat that person as still having that asset, as part of the financial assessment.
9. A Deferred payment agreement (DPA) is designed to prevent people from being forced to sell their home in their lifetime to meet the cost of their care. Councils must offer them to people who meet the criteria below. If the Council has taken the value of the clients property into account as part of the financial assessment, the client can become eligible for a DPA once they have less than (or equal to) £23,250 in assets left, excluding the value of her property.
10. The Care Act Guidance says that, if a council has concerns about the actions of an attorney acting under a registered enduring power of attorney (EPA) or lasting power of attorney (LPA), or a deputy appointed by the Court of Protection, they should contact the Office of the Public Guardian (OPG). 

Mr C’s complaint about the delay in completing the financial assessment

11. In March 2017, the Council wanted to carry out a financial assessment to assess how much Mrs M would have to pay towards her care in the community. However, the records state that Mrs M declined, because she did not want to disclose her finances. As such, Mrs M agreed to pay for the full cost of her care.
12. Her health deteriorated and she needed a homecare package as of April 2019. Mrs M was diagnosed with a mixed diagnosis of mild dementia and Alzheimer’s one month later, after which Mr C registered a Lasting Power of Attorney for Property & Financial Affairs in August 2019.
13. Mrs M became increasingly unable to cope with living in the community and, according to the Council’s records made at the time, Mr C told the Council in January 2020 that he had discussed 24-hour care with her. The need for a care home was discussed with the family, as well as how to pay for this. Mrs M had a property and the Council explained that, based on her assets, she would have to self-fund her care at the home. However, Mr C told me that he never discussed his mother going into a care home or 24-hour care.
14. Mr C withdrew an amount of £81,000 between January and March 2020, from accounts that were in his mother’s (and his) name.
15. The family moved Mrs M into a care home as a privately funded resident. In March 2020, Mr C asked if the Council could financially contribute to the cost of his mother’s care. As such, the Council asked Mr C to provide his mother’s financial information. Mr C provided a response in June 2020, two months later.
16. Mr C says the Council should have spoken to his mother as part of this financial assessment. He said that if the Council had done this, she would have told the Council that the funds in the joint bank accounts, belonged to both of them. Instead, he said the Council assumed the funds only belonged to his mother. He says this resulted in delays and inaccurate calculations by the Council.
17. In response, the Council says there were several bank accounts, but Mr C did not indicate in his response of June 2020 that any of the accounts he provided information for wasn’t anything other than entirely belonging to his mother. It said that its view at the time was that the accounts were in joint names because Mr C was his mother’s LPA, not because part of the funds in them belonged to Mr C. The Council says Mr C first said the funds in the accounts were joint funds at the end of August 2020.
18. In response, Mr C says that only two out of the six joint accounts had recently become joint accounts due to him becoming his mother’s LPA for finance. The other four accounts had been used as joint accounts for many years before then. He said the bank statements clearly said the accounts were also in his name and he was not aware he had to separately inform the Council the funds were joint.
19. In mid-July 2020, a financial assessment officer (officer A) contacted Mr C and asked about the £81,000 that was withdrawn from his mother’s accounts. Mr C told the officer his mother had decided to give a large sum of her capital to her family as gifts, because she said ‘she did not need it’. A discussion took place over the phone about deprivation of assets. The same officer told Mr C later that same day, in writing, that his mother remained above the threshold and therefore self-funding.
20. The Council says officer A was concerned about the £81,000 that Mr C said he had gifted away on behalf of his mother. As such, she raised a safeguarding concern with Mrs M’s social worker. The social worker immediately referred the matter to the OPG, who subsequently contacted Mr C.
21. Mr C says the Council should have spoken to his mother. He said that if the Council had done this, she would have explained that it was her decision to give away her funds, not his.
22. In response, the Council told me that, while it was correct to contact the OPG, it agrees it should have contacted Mrs M to try and verify what Mr C said, which was that his mother chose to make substantial financial gifts to her family. The Council has already instructed its assessors to explore the possibility of having a conversation with the donee of an LPA in similar circumstances. However, as Mrs M did not have capacity at the time to make decisions about her care and support needs, it is unlikely such a conversation would have provided relevant information and/or resulted in a different outcome.
23. The OPG advised Mrs M’s social worker that it would investigate Mr C’s management of his mother’s finances. It said they would ask a Court of Protection visitor to see if Mrs M still has mental capacity and, if possible, find out her views about the concerns that have been raised.
24. Mr C appealed the Council’s decision in September 2020, saying the bank accounts he provided were in joint names, so the Council should only treat half of the money in them as his mother’s. As such, he said the Council should only have treated half of the amount gifted away as his mother’s funds (as notional capital). The Council told me this was the first time Mr C said that part of the funds in the accounts belonged to him. As such, the Council asked him in mid-September 2020 to provide copies of all the accounts showing the account holders’ names. The Council explained to Mr C one month later, that it would needs a statement from the bank.
25. The OPG provided the outcome of its investigation to the Council at the end of October 2020. The report said that: Mr C had made gifts from his mother’s funds, totalling £76,000. Mr C had agreed that it was not in his mother’s best interests because she would need funds to pay towards her care. The OPG told Mr C to repay the £76,000 into Mrs M’s account, which he did. The OPG reminded Mr C of his responsibilities as an attorney, in particular that he should seek approval from the Court of Protection should he wish to make significant gifts on behalf of his mother.
26. The Council said that, when it subsequently made a decision about Mrs M’s case, it failed to notice the OPG’s decision that Mr C would have to repay the entire £76,000 to his mother. As such, it incorrectly decided mid-November 2020 that: the accounts were held in joint names and Mr C would therefore only have to repay half of the amount gifted back into Mrs M’s account (£38,000). Nevertheless, Mrs M’s capital remained over the threshold.
27. Following, the Council’s decision, Mr C took out £40,500 because the Council had just told him he was entitled to this.
28. Mr C asked the Council again for a financial reassessment in mid-June 2021, because he believed his mother did not have more than £23,250 of funds left in her bank account(s). The financial assessment team asked Mr C the next day to provide all relevant information, which it received within two weeks.
29. The Council concluded that Mrs M remained self-funding. Mr C appealed the decision, after which the Council asked for more information. The Council concluded in November 2021 that Mrs M’s capital would only reach the threshold in July 2022. However, the Council has since decided it incorrectly calculated how much money there should still be left in Mrs M’s account:
1. The calculation was based on the OPG’s report that Mr C had to pay £76,000 back to his mother.
2. However, it ignored the Council’s subsequent decision (made in error) that he would only have to repay half of that amount.
30. The Council subsequently accepted its mistakes above and told Mr C at the end of November 2021 that it accepted that Mrs M’s accessible funds had fallen below the £23,250 threshold in May 2021. This meant that Mr C would now be able to ask for a loan under the DPA scheme.
31. The Council told me that, part of the delay after June 2021 occurred, because:
1. The Council was obtaining advice from the Ombudsman, between September and November 2021.
2. Despite having provided Mr C with information about DPAs, he has failed to ensure his mother’s property was registered with the Land Registry. This is a requirement for a DPA to be possible. This meant there was a delay from 22 November 2021 in getting a DPA in place due to Mr C.
32. The Council told me that, although it made some errors that have caused delay and confusion, it does not believe a financial remedy is appropriate:
1. Mr C has benefitted by at least £38K, from the Council’s error in not taking account of the OPG letter.
2. The Council will backdate its payments under the DPA to May 2021, when it is up and running. This means it will reimburse funds back into Mrs M’s bank account so will have remedied any financial injustice to Mrs M.
3. The Council has brokered an agreement between Mr C and the care home, to make sure that this situation has not put Mrs M’s care home placement in any jeopardy.
33. The Council told me it will ensure that the learning from this case is shared with all social workers via its regular staff communication bulletin. The consequences of the failure to share the OPG letter with the Finance team shall be highlighted.

Analysis

34. I found the Council should have verified why / how all the bank accounts were joint, rather than assuming “they were all joint accounts because Mr C had become his mother’s appointer Attorney for financial affairs”.
35. However, I did not find fault that the Council did not discuss this with Mr C’s mother. Mr C was his mother’s attorney so he could deal with his mother’s finances on her behalf because she was deemed as not having capacity to deal with such manners. The Council should have clarified the issue around joint accounts with Mr C, not with his mother.
36. When Mr C asked for a financial assessment in June 2021, the Council carried this out incorrectly, which resulted in a two- months delay, for which it should apologise. However, the subsequent delay in getting a DPA in place from November 2021, and the distress this resulted in, was due to Mr C not having registered his mother’s property with the Land Registry yet. As such, they are not due to fault by the Council and no remedy is required for that period.

The complaint about the alleged false name

37. Mr C said that, when he asked officer A during the call (see para 19) what her name was, she used officer B’s name.
38. The Council and I have asked Mr C to provide the evidence Mr C said he had, that officer A used a false name. However, Mr C has been unable to provide this.
39. The Council says the case note on its system clearly states the name of officer A as the person who made the call. The outcome letter of the financial assessment on the same day was also signed by officer A. The Council did not find evidence to support Mr C’s assertion that officer A gave a false name.

Analysis

40. Based on the available evidence, I am unable to conclude whether officer A used a false name during the telephone call in July 2020.

The Council’s decision to refer Mrs M’s case to the OPG

41. Mr C says the Council should not have referred his mother’s case to the OPG.
42. The Council says it referred the case to the OPG because it was concerned Mr C, who was his mother’s appointee, was taking out large sums of money. The Council has a legal duty to look into and report any suspected financial exploitation or financial abuse of any vulnerable adult. In cases where the alleged abuser is a court appointed appointee, the Council has to refer the concern to the OPG to consider and investigate, if the OPG deems further investigation is needed.

Analysis

43. I did not find fault with the Council’s decision, as it needs to refer such concerns to the OPG. It will then be up to the OPG to investigate any concern. However, it should have considered contacting Mrs M to try and establish if it was her decision to make these gifts and if she had capacity to do so. However, I am unable to conclude this would have likely made a difference, as Mrs M had problems with her short-term memory and was deemed not to have capacity in relation to complex decisions.

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Agreed action

44. I recommended that, within four weeks of my decision, the Council should apologise for any distress that resulted from the faults identified above.
45. The Council has told me it has accepted my recommendation.

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Final decision

46. For reasons explained above, I found there was some fault in the Council’s actions. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

Parts of the complaint that I did not investigate

47. I did not investigate the Council’s decision that a financial gift from Mrs M was a deprivation of capital. We cannot investigate this because this matter (the gift / amount) has already been decided on by the OPG.

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Investigator's decision on behalf of the Ombudsman