Summary: Mr and Mrs X and Mrs Y complained about the Council’s decisions about Mrs B’s care and how it considered their views. They also said it wrongly investigated safeguarding concerns about them. We found no fault in how the Council reached its decisions about Mrs B’s capacity and care, nor how it investigated the safeguarding concerns. Without fault in the process, we cannot criticise the merits of the decisions the Council made.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs X and Mrs Y, complained on behalf of Mrs B about the Council’s handling of her care since 2019. They said the Council:

• wrongly kept Mrs B in an expensive and unsuitable nursing home;
• wrongly investigated a safeguarding concern that they caused Mrs B a risk of financial or emotional abuse; and
• failed to include them enough in decisions about Mrs B’s care and financial affairs.

2. As a result, they said Mrs B experienced distress and had additional financial costs for her care. They also said they experienced distress due to the Council’s actions.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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How I considered this complaint

6. As part of my investigation, I have:
• considered Mr and Mrs X’s and Mrs Y’s complaint and the Council’s responses:
• discussed the complaint with Mr and Mrs X and Mrs Y;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law and guidance relevant to the complaint.
7. Mr and Mrs X, Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Mental capacity and best interest decisions

8. The Mental Capacity Act 2005 (the Act) and the Code of Practice sets out how a local authority should act to determine if a person has capacity to make their own decisions.
9. The Act sets out five principles which must be applied. These are:
• the person has a right to make decisions and are assumed to have capacity;
• the person should be given help before a decision about capacity is made;
• the person may make poor decisions, but this does not mean they lack capacity;
• any decision made on the person behalf must be in their best interest; and
• any decision should be the least restrictive of the person.
10. When a person’s capacity is in doubt a local authority should carry out an assessment. This should set out what decisions the person is unable to make. If a person does not have capacity to make a decision themselves, a best interest decision should be made.
11. When making a best interest decision a local authority must consider the persons past and present wishes, including any belief and values the person had which would be likely to influence their decision if they had capacity. If appropriate, it should also consider:
• the views of anyone the person wishes to be consulted;
• anyone engaged in caring for the person or interested in their welfare;
• anyone with a lasting power of attorney (LPA) or any deputy appointed for the person by the Court of protection (COP).

Safeguarding

12. A local authority must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a local authority in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Section 42, Care Act 2014)

What happened

13. Mrs B lived alone in her home. Since her husband died, she had received help and support from her long-term friends (Mr and Mrs X), and her goddaughter (Mrs Y). This included help around her home, and to manage her finances and investments as Mr X was a signatory on her bank accounts.
14. In early 2019 Mrs B was hospitalised following a fall in her home. The following day, the hospital discharged her into a nursing home (the Care Home).
15. Mr and Mrs X and Mrs Y applied to the Office of the Public Guardian (OFG) for a lasting power of attorney (LPA) to manage Mrs B’s welfare and finances. They also visited another care home and arranged for its manager to meet with Mrs B. This was because they believed this care home would be cheaper and more suitable to meet Mrs B’s needs.
16. The Hospital’s social worker asked the Council’s Adult Social Care team to get involved as Mrs B did not have any formal support for help with her finances. She said Mrs B believed Mr and Mrs X and Mrs Y were making arrangements to move her to a different care home against her wishes, and she were being asked to sign the LPA. Mrs B had also said she had concerns about how they had managed her finances.
17. As a result, the Council visited Mrs B to assess her mental capacity to sign an LPA for someone else to manage her welfare and finances. It also met with Mr and Mrs X and Mrs Y to discuss its safeguarding concerns. The Council:
• found it did not believe Mrs B had mental capacity to make an LPA in favour of Mr and Mrs X and Mrs Y, and told the OFG accordingly;
• held a best interest meeting to decide how Mrs B’s finances should be managed, which included Mr and Mrs X and Mrs Y. It decided it was in Mrs B’s best interest for the Council to apply to the OFG for it to manage decisions around her welfare and her finances;
• decided to make further safeguarding enquiries about Mr and Mrs X and Mrs Y handling of Mrs B’s welfare and finances. It asked for Mrs B’s bank to stop access to her bank account until a formal LPA had been set up. It closed its safeguarding investigation in summer 2019 as any risk to Mrs B’s funds had been mitigated.
18. In summer 2019 Mr and Mrs X took Mrs B to visit another care home, which they believed could better support her and it cost less than the Care Home.
19. The Council considered a further safeguarding investigation as Mrs B’s support worker told the Council she had been emotionally distressed after the visit to another care home, and she questioned why she was being moved.
20. The Council held a further mental capacity assessment of Mrs B in summer 2019 to determine if she could make a decision about paying for her care at the Care Home and who should manage her finances. It said it did so as she was likely to have to self-fund her care. It considered the views of Mrs B, her advocate, and the concerns raised by Mr and Mrs X and Mrs Y. The Council found:
• Mrs B wanted to stay at the Care Home and she was happy with the food and activities available to her;
• Mrs B did have capacity to understand and to make a decision about paying for her care. This was because she understood the funds she had available and the cost she would have to pay for her care; and
• Mrs B could not make a decision about whether she, the Council, or Mr and Mrs X and Mrs Y should manage her welfare and finances. It therefore made a best interest decision that the Council should apply to the OFG to manage these through a deputyship order.
21. Mr and Mrs X and Mrs Y raised concerns to the Council about its decisions and the suitability of the Care Home for Mrs B. The Council met with them to discuss the concerns and explained its view.
22. In autumn Mrs B started paying for her care at the Care Home.
23. In early 2020 the Council was appointed deputy for Mrs B’s welfare and financial affairs.
24. In late 2020 the Court of Protection decided Mr and Mrs X and Mrs Y should be deputies for Mrs B’s financial affairs. This was set out in its order in early 2021.

Mr and Mrs X and Mrs Y’s complaint

25. Mr and Mr X and Mrs Y made complaints to the Council between late 2019 and July 2020. Their key points of complaint were:
• Mrs B had wrongly been placed in the Care Home without considering their views, and Mrs B’s views. They said Mrs B did not require the level of care she was paying for at the Care home, and her needs could be better met in another care home they had identified;
• Mrs B should have been funded through NHS until August 2019 as she was in respite care;
• a large amount of Mrs B’s savings was moved from her savings to her current account, and a direct debit was set up for the cost of the Care Home at a time when she had been assessed as not having capacity to make such decisions;
• it had wrongly refused their request for Mrs B to be informed in writing about everything happening to her, and decisions made on her behalf. Including, leaving cards from any visitor who had been to see her;
• it wrongly investigated a safeguarding concern that Mr and Mrs X and Mrs Y caused Mrs B a risk of financial or emotional abuse, and arranged for Mrs B’s bank account to be frozen. This left her without any access to money for essentials and left her isolated with no support from those who knew her; and
• it should have accepted them as representatives, or deputies, of Mrs B from the start. They also said it had failed to share information about its handling of Mrs B’s care and communicate enough with them.
26. In its responses the Council told Mr and Mrs X and Mrs Y it had acted appropriately and in line with its policies and the law. It explained it:
• first became involved with Mrs B’s care when the hospital’s social worker raised a safeguarding alert. It found Mrs B’s needs could be met in the Care Home and followed her wishes to remain there;
• did mental health assessments which found Mrs B did not have capacity to manage her care and finances. However, its assessment found she did have capacity to make the specific decision about paying for her care in the Care Home, which included setting up a direct debit to do so;
• had made a best interest decision for the Council to manage Mrs B’s finances until the CoP had decided who should be a permanent deputy. It had considered Mrs B’s wishes for this to be someone independent;
• had communicated with Mr and Mrs X and Mrs Y since it became involved, and it had considered their views and concerns when it assessed Mrs B and it made decisions on her behalf;
• had found it would not be appropriate to put everything happening to Mrs B in writing to her as this may cause her upset due to her short term memory;
• had done a property protection visit to Mrs B’s home and decided not to object to Mr and Mrs X’s help to keep it safe;
• was satisfied it was appropriate for it to investigate the safeguarding concerns it received and make further enquiries. It had mitigated the concerns by arranging for her bank account to be frozen until a formal deputy was in place and ensured Mrs B would not be taken to visit other care homes; and
• some of their complaint was for the NHS and the OFG to consider.
27. Mr and Mrs X and Mrs Y were not satisfied with the Council’s response and how they had handled their concerns. So, they asked the Ombudsman to consider their complaint.

Analysis

28. Mr and Mrs X and Mrs Y’s complaint is late. This is because they are complaining about matters which occurred more than 12 months before it was brought to our attention. However, they could not bring their complaint on behalf of Mrs B until they received the Court of Protection Order which made then deputies in early 2021. I therefore found it appropriate to exercise my discretion to consider their complaint from 2019.

Decisions about Mrs B’s care and finances

29. In early 2019 the hospital discharged Mrs B into the Care Home. The Council was not involved in this decision. It was therefore not at fault for placing her there.
30. The Council became involved when the hospital’s social worker raised a safeguarding concern about Mr and Mrs X and Mrs Y’s application for an LPA. At the time, no one had any formal authority to make decisions on Mrs B’s behalf.
31. The Council arranged for Mrs B to have an independent advocate and assessed her capacity to make decisions about her care and finances in early 2019 and in summer 2019. It reached its view she could not do so. So, it a made best interest decisions on her behalf, which included she should remain in the Care Home and the Council should apply to become her deputy. I have seen no fault in how the Council reached its views, and I cannot therefore criticise its decision. This is because, before it reached its decisions, it properly considered:
• who had helped Mrs B in the past, including the support Mr and Mrs X and Mrs Y had provided;
• Mrs B’s own views, which included her wishes to remain in the Care Home; and
• Mr and Mrs X and Mrs Y views about the Care Home, costs and Mrs B’s past wishes.
32. In summer 2019 the Council again assessed Mrs B’s capacity. This was to determine if she could make a specific decision about paying for her care at the Care Home. The evidence available shows Mrs B understood what resources she had available and how she could pay the Care Home costs. The Council also shared Mr and Mrs X and Mrs Y’s concerns about the care and costs at the Care Home with her. However, Mrs B wished to remain there. The Council found she had capacity to make the decision and to set up a direct debit to pay for her care. I found no fault in how the Council considered this, I cannot therefore criticise the merits of its decision.
33. While I understand Mr and Mrs X and Mrs Y believes the Care Home was more expensive and offers less activities for Mrs B compared to the alternative care home, which they found could provide the level of care she needed. This was not a decision for them to make as they were not formal deputies at the time.
34. I understand Mr and Mrs X and Mrs Y have since become deputies for Mrs B for her finances, but not for her welfare which is a matter for the Court of Protection to consider. Therefore, until this changes, decisions about where she receives her care still needs to be decided under a best interest decision.
35. Mr and Mrs X and Mrs Y also said Mrs B was left without any money for essentials when the Council arranged for her bank account to be frozen. While this may have restricted Mrs B’s ability to make any purchases, I am satisfied the Care Home she was in was all inclusive, and I have no evidence of Mrs B being left without essentials. I am therefore not satisfied the Council was at fault on this matter.

The Council’s safeguarding investigations

36. Mr and Mrs X and Mrs Y said the Council was wrong to investigate and make enquires about them when the safeguarding concerns were raised.
37. I have not found the Council at fault for how it handled the safeguarding investigations. This is because:
• it had a duty to investigate the concerns it received, in particular as Mrs B herself suggested Mr and Mrs X and Mrs Y may not have handled her finances appropriately, she was being moved to another care home against her wishes, and she was being asked to sign an LPA against her wishes;
• it took limited actions to reduce any risk to Mrs B by arranging for her bank accounts to be frozen; and
• it met with Mr and Mrs B and Mrs Y to discuss the concerns raised and explained the steps it was taking to protect Mrs B.
38. I understand Mr and Mrs X and Mrs Y experienced some distress due to the safeguarding investigations and the concerns raised against them. However, it was not fault by the Council to investigate these. In reaching my view, I am also conscious it did not restrict their ability to visit Mrs B, or to continue looking after her home.

The Council’s involvement of Mr and Mrs X and Mrs Y

39. I found the Council properly considered the view of Mr and Mrs X and Mrs Y before it reached its capacity and best interest decision for Mrs B.
40. Mr and Mrs X and Mrs Y also said the Council should have accepted them as suitable representatives of Mrs B from the outset in 2019. And it should have involved them more before it made its decisions.
41. I acknowledge Mr and Mrs X and Mrs Y are now deputies for Mrs B’ finances and I have seen no evidence their actions were anything but in the best interest of Mrs B. However, I have not found the Council at fault for how it communicated with them and considered their views. This is because:
• in early 2019 the Council’s found Mrs B did not have capacity to decide who should manage her welfare and finances. Any decision about this was therefore not for the Council, but for the Court of Protection;
• when Mrs B raised concerns about Mr and Mrs X and Mrs Y and safeguarding concerns were brought to its attention, the Council still met with them, considered their views and shared their views with Mrs B. While they feel they should have been more involved, it was up to the Council to decide what weight to give to the views it received; and
• it responded to questions and concerns Mr and Mrs X and Mrs Y raised since 2019 through telephone calls or meeting. Although, it found it was not appropriate to share all information and date with them.
42. If Mr and Mrs X and Mrs Y have concerns about the Council’s handling of data protection, they should bring these to the attention of the Information Commissioner (ICO) who considers such issues.

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Final decision

43. I have completed my investigation with a finding of no fault by the Council.

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Investigator's decision on behalf of the Ombudsman