Summary: Ms X complains the Council has failed to deal properly with her daughter’s care needs for many years and has failed to respect her powers of attorney for health and welfare and property and affairs. The Council accepts it failed to respect the fact that Ms X can manage her daughter’s finances regardless of whether her daughter lacks the capacity to do so herself. The Council was also at fault over its handling of two mental capacity assessments, as they did not comply with its own statement on how it should approach such assessments. There was also a long delay in making a decision in the daughter’s best interests. This caused avoidable distress which requires an apology and a symbolic payment.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council has failed to deal properly with her daughter’s (Ms Y’s) care needs for many years and has failed to respect her powers of attorney for health and welfare and property and financial affairs.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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, sections 30(1B) and 34H(i), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

Back to top

What I have and have not investigated

5. I have investigated the Council’s actions since August 2020.
6. I have not investigated earlier events because of the restriction in paragraph 4 above. There are no good reasons to investigate the earlier events now.
7. I have not investigated issues which involve Ms Y’s care provider, as she has not given consent for us to do so. Ms X says her daughter is satisfied with her current care arrangements.
8. I have also not investigated concerns about a dietician, as they fall within the remit of the Parliamentary and Health Service Ombudsman. Ms X would first need to complaint to the NHS.

Back to top

How I considered this complaint

9. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X and the Council;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Ms X and the Council, for me to consider before making my final decision.

Back to top

What I found

What happened

10. Ms Y has been diagnosed with autism and, more recently, a dissociative personality disorder, which means she presents as more than one personality. She lives in supported living accommodation in another county, where Cambridgeshire County Council funds her support from a specialist care provider.
11. Since 2013 Ms X has had Lasting Powers of Attorney for Ms Y’s property and financial affairs, and her health and welfare. The former could be used as soon as it was registered by the Office of the Public Guardian in 2013. However, the latter could only be used if Ms Y was assessed as lacking the capacity to make specific decisions for herself. Ms X is also her daughter’s Department for Work and Pensions appointee, which means she is responsible for making and maintaining her benefit claims.
12. During the first COVID-19 lockdown in 2020, Ms Y presented as one of her other personalities for several months. She experienced increased problems with food and diet, which resulted in the dietician being involved and providing advice on how to manage the issues, which the Council and care provider followed.
13. Ms X was concerned the other personality may spend her daughter’s money, so moved money into another account in her daughter’s name to prevent this from happening. This resulted in a complicated sequence of events involving:
• Ms Y’s bank, which asked for evidence of her mental capacity;
• the county council where Ms Y lives, which arranged for safeguarding enquiries into concerns about Ms X’s management of her daughter’s money; and
• the Office of the Public Guardian, which was involved in the concerns about how Ms X was using her daughter’s powers of attorney.
14. Cambridgeshire County Council was also involved in these events. When responding to a complaint from Ms X in November 2020, the Council confirmed a Lasting Power of Attorney for property and financial affairs could be used as soon as it was registered with the Office of the Public Guardian. It also accepted Ms Y’s decision not to share information with her mother about some health and welfare issues, did not have implications for the need to share information with Ms X about her daughter’s finances. It apologised for not making this clear to Ms X and Ms Y. It accepted it should have reminded Ms Y of this at the time.
15. Having taken legal advice, the Council told Ms X the powers of attorney were in place whether or not her daughter was presenting as one of her other personalities. It also confirmed that any mental capacity assessment would be for Ms Y, even if she were presenting as another personality. However, an assessment would take account of the other personality’s impact on Ms Y’s ability to make a decision at any given time. It apologised if it had not made this clear before.
16. In August and December 2020 Ms Y was assessed as lacking the capacity to manage her finances. It was difficult to assess her mental capacity to do this, as Ms Y has never managed her own finances. Her lack of experience meant it was difficult to work out whether her inability to manage her finances was due to a lack of knowledge or a lack of mental capacity. All the evidence shows Ms Y is happy for her mother to manage her finances for her.
17. The Council visited Ms Y in May 2021 to assess her mental capacity to understand “her current care and support needs” and “the implications of sharing information with her mother”. When the Council visited Ms Y was presenting as one of her other personalities. The assessments said they were to assess the mental capacity of that personality, rather than Ms Y. The Council completed the assessments in June and July, after consulting other health and social care staff. In June it decided that, while the other personality could articulate her wishes for her mother to have all information about her and Ms Y, she did not have full knowledge and understanding of what all the information could contain (e.g. health reports), the other personality did not have capacity to fully understand the implications of sharing this information with Ms X. In particular, the Council was concerned the other personality would not be fully aware of the implications of her mother sharing information more widely, perhaps without the other personality’s or Ms Y’s consent or knowledge. In July the Council decided the other personality had the capacity to understand her current care and support needs. This took account of the fact that both Ms Y and the other personality had actively sought support from care workers when needed and would not feel safe if support was not available.
18. In June 2022 the Council held a meeting to decide whether it was in Ms Y’s best interests to share information with her mother. It noted there had been a delay in arranging the meeting and put this down to securing advocacy for Ms Y. Everyone agreed it would be in Ms Y’s best interests to share information with Ms X.

Legal and administrative background

19. 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. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
20. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

21. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
22. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

23. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.

Is there evidence of fault by the Council which caused injustice?

24. The Council accepts it was at fault over the failure to recognise the need to share information with Ms X about her daughter’s finances in 2020, which made it difficult for her to do so, in particular in her dealings with the Department for Work and Pensions. It has apologised but also needs to make a symbolic payment to Ms X to remedy the injustice arising from the avoidable distress and inconvenience she has been caused.
25. The mental capacity assessments in 2021 did not comply with the Council’s own statement on how it should approach such assessments (see paragraph 15 above). Both assessments said they were of one of Ms Y’s other personalities. But the Council had confirmed that it could only assess Ms Y’s mental capacity. The assessments should have said whether the other personality had an impact on Ms Y’s ability to make decisions, but did not do so. That was fault by the Council. It seems unlikely the failure to do so would have affected the outcome of the assessment about understanding care needs, as that did at least take account of Ms Y’s engagement with her care needs.
26. However, it is not possible to say what the outcome of the assessment about sharing information would have been if there had been no fault by the Council. The assessment should have considered the impact the other personality may have had on Ms Y’s ability to make the decision. That assessment also referred to vague concerns about the implications of Ms X sharing information more broadly. It is difficult to see how Ms Y (or the other personality) could have been expected to understand the implications of those concerns when they were expressed so vaguely.
27. It then took a year to hold a best interests meeting. That was also fault. This reflects the fact mental capacity should be assessed around the time the decision needs to be made. The delay meant Ms X had to wait longer than necessary for responses to subject access requests made in September 2020. This added further to her distress.

Back to top

Agreed action

28. I recommended the Council:
• Within four weeks writes to Ms X apologising for the distress it has caused and the inconvenience it has put her to and pays her £350 to remedy the injustice arising from that distress and inconvenience.
• Within eight weeks identifies the action it is going to take to ensure future assessments of Ms Y’s capacity meet the requirements it has agreed are necessary.
29. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

30. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman