Darlington Borough Council (17 015 575)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 13 Jul 2018

The Ombudsman's final decision:

Summary: Ms X complains that the Council did not act when Miss Y’s appointee failed to pay her care costs and ran up a large debt in her name. At this point, the Ombudsman finds the Council was at fault and this caused Miss Y distress. The Council should limit the arrears to £828.14, the amount outstanding when it should have acted, and pay her £350 for the distress. It should also review procedures to ensure it avoids similar problems in future.

The complaint

  1. The complainant, whom I shall refer to as Ms X (Miss Y’s adviser) complains on behalf of Miss Y, that the Council:
    • failed to properly explain to Miss Y about her finances and having an appointee;
    • did not take action although it knew Miss Y’s appointee was allowing arrears to accrue;
    • expects Miss Y to repay the arrears although she did not know about them.
  2. Ms X says the arrears could have been avoided if the Council had taken action so Miss Y should not have to pay the outstanding amount. She would like the Council to take steps to ensure similar situations do not arise in future with others.

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The Ombudsman’s role and powers

  1. 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). I am satisfied that Miss Y did not fully understand the situation and the implications for her until shortly before she was assisted to complain to us.
  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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I considered information from the Complainant and from the Council.
  2. I will send both parties a copy of my draft decision for comment and will take account of the comments I receive in response.

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What I found

  1. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
  2. The statutory guidance to the Care Act says:
    • The aims of safeguarding include:
      • Prevent harm and reduce the risk of abuse or neglect to adults with care and support needs
      • Stop abuse or neglect wherever possible
      • Safeguard adults in a way that supports them in making choices and having control about how they want to live
      • Promote an approach that concentrates on improving life for the adults concerned
      • Address what has caused the abuse or neglect.
    • Six key principles underpin all adult safeguarding work:
        1. Empowerment – people being supported and encouraged to make their own decisions and informed consent.
        2. Prevention – it is better to take action before harm occurs
        3. Proportionality – the least intrusive response appropriate to the risk presented
        4. Protection – support and representation for those in greatest need
        5. Partnership – Local solutions through services working with their communities.
        6. Accountability – accountability and transparency in delivering safeguarding
    • Making safeguarding personal means it should be person-led and outcome-focused. It engages the person in a conversation about how best to respond to their safeguarding situation in a way that enhances involvement, choice and control as well as improving quality of life, wellbeing and safety.
    • Local authorities may choose to undertake safeguarding enquiries for people where there is not a section 42 enquiry duty, if the local authority believes it is proportionate to do so and will enable the local authority to promote the person’s wellbeing and support a preventative agenda.
    • Abuse and neglect take many forms. Abuse can lead to a violation of someone’s human and civil rights by another person or persons. Abuse can be physical, financial, verbal or psychological. It can be the result of an act or a failure to act.
    • It can happen when an adult at risk is persuaded into a financial or sexual exchange they have not consented to, or can’t consent to. Abuse can occur in any relationship and may result in significant harm or exploitation.
  3. The Darlington Safeguarding Adults Partnership Board Multi-Agency Policy and Procedures Practice Tool to aid Decision Making says significant or critical indicators for financial abuse include:
    • “Adult denied access to his/her own funds or possessions”.
    • “Misuse/misappropriation of property or possessions or benefits by a person in a position of trust or control”
    • “Personal finance removed from adult’s control”.
    • “Ongoing non-payment of care fees putting a person’s care at risk”.
  4. And for domestic abuse:
    • “Accumulations of minor incidents”.
    • “No access/control over finances”.
    • “Relationship characterised by imbalance of power”.
  5. It also says “Practitioners are required to be mindful of both Making Safeguarding Personal and the six key principles when arriving at any decision.

Mental Capacity

  1. The Mental Capacity Act 2005 (the Act) 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 themselves.
  2. The Act says that a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity.

Appointees

  1. An appointee is responsible for making and maintaining any benefit 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. An appointee can be held responsible if benefit is overpaid. The appointee must:
    • tell the benefit office about any changes which affect how much the claimant gets; and
    • spend the benefit it receives in the claimant’s best interests.
  2. The Department for Work and Pensions (DWP) decides whether the person 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.
  3. The DWP’s website says that it will usually attend a case conference under safeguarding procedures when asked.

Supported accommodation

  1. Supported accommodation allows people to rent or own their own home and receive the support they need to live as independently in the community as possible. Service users’ needs must be assessed and a support plan developed.

What happened

  1. Miss Y has disabilities and health conditions which mean she has difficulties hearing, keeping herself safe and well, and with living independently.
  2. Miss Y’s father (Mr Y) became her appointee in 2007. He looked after her money and dealt with her correspondence.
  3. In 2012, Miss Y signed a direct payments agreement.
  4. In 2013, Miss Y and Mr Y signed a financial assessment. The following month, the Council sent an invoice to Miss Y for her contribution. In November, support staff advised the social worker that Mr Y would not pay Miss Y’s care contribution as he believed it should be free. A social worker visited Mr Y the same day and explained so Mr Y agreed to pay. Miss Y was not present because the social worker felt this would have distressed her.
  5. In January 2014, the Council wrote to Miss Y about the outstanding debt. The finance team made an arrangement that Mr Y would pay £10 per month plus current invoices of £76.35.
  6. In March, the finance team contacted the social worker to advise that Mr Y had not made a payment. The social worker visited a few days later to review the support plan. Miss Y was present but they did not discuss her contribution as this was not an appropriate time. They discussed the future and Miss Y’s impending move.
  7. In June, the finance team wrote to the social worker to advise it had received a payment of £10.91 in May but not the payment for the four weekly invoice.
  8. In July, the Council visited Mr Y to discuss the debt. He said he was willing to make a payment. The following month, the Council wrote to him asking him to make contact and set up a repayment plan. The Council met with Miss Y and Mr Y and advised it would take court action if Mr Y failed to pay the care costs. Miss Y was aware that her father was not paying her contributions but said she got plenty of money when she needed it and was happy living at home with her father managing her finances. Mr Y began to make payments. The finance team wrote to the social worker “I have spoken to [Mr Y] on a couple of occasions regarding this but I am unsure if he understands what he needs to pay and maybe would need some support”. Mr Y was paying £10 per month on the arrears but not the current four weekly bill. The outstanding balance was £828.14. I saw no evidence that Mr Y was supported to understand his responsibilities or the implications of his actions.
  9. The social worker spoke to Mr Y at her review visit. She informed him that he needed to contact the finance team and that Court action would progress if he did not. Miss Y’s supported self directed review dated 15 August 2014, says “Living at home with my Dad is very important to me”. “I cannot handle money very well, although I can recognise change. I have my own bank account and my dad helps me with that. He gives me money when I need it”. “I still need help with money and banking. I receive money from my dad for clothes and I see it as my money. I don’t pay board”. It also says “There is concern around [Miss Y’s] financial situation as she does not seem to have much money, however, [Miss Y] has capacity to make a decision around who looks after her money and she is happy with the way her money is handled. [Miss Y] is quite happy for her dad to look after it”.
  10. The Council received a payment from Mr Y In November 2014 but he then stopped paying. Miss Y’s support plan of that date says: “Living at home with my Dad is very important to me”. “I cannot handle money very well, although I can recognise change. I have my own bank account and my dad helps me with that. He gives me money when I need it”. “Dad deals with all of my finances and correspondence”.
  11. In December 2015, the finance team contacted the social worker advising her the debt was £2126.13.
  12. In January 2016, the finance team contacted the social worker to advise it had received no payments since November 2014. The social worker asked it to delay court action and agreed to visit. The Council says the delay in dealing with the arrears arose because an officer in the finance team was on leave for several months.
  13. In February, when the social worker visited, Mr Y agreed to pay the contributions. Miss Y’s care and support needs reassessment completed at that visit says ““Living at home with my Dad is very important to me”, and “I would like to have more control over my money and learn to budget my money”. The finance team agreed a payment of £100 per month with Mr Y and sent a letter to Miss Y to confirm and the Council received the first payment. The Council says Miss Y attended the meeting where this was agreed but Miss Y cannot recall it.
  14. In August, the Council received a payment from Mr Y but then he stopped payments.
  15. In November, the social worker visited to review Miss Y’s support plan. They discussed her plans to move into supported living accommodation and Mr Y agreed to stop being her appointee.
  16. In December, Miss Y moved to the supported living accommodation.
  17. In January 2017, support staff from the Care Provider helping Miss Y spoke to Miss Y’s sister to ask for support to end the appointeeship as Mr Y had not yet done so. The Council wrote to Miss Y about her contributions for the supported living accommodation. The support staff became aware that Miss Y did not have enough money to manage her supported living care costs or the arrears
  18. Miss Y spoke to the support staff and said she wanted control of her own money. The staff spoke to Mr Y. They showed a manager from the Care Provider a letter from the Council showing a debt of £2730.89. With Miss Y’s consent, the manager raised a safeguarding alert with the Council. The Council spoke to the DWP who agreed to send an inspector to visit Mr Y.
  19. The Council decided the alert would not progress to a safeguarding strategy meeting. Its investigation report said “debt management of care cost arrears would usually only be dealt with through safeguarding strategy meetings where there was evidence of significant harm”. An action plan noted the social worker would complete a home visit and a mental capacity assessment. The social worker spoke to her manager and as she had no reason to doubt Miss Y’s capacity to deal with her finances she did not complete a capacity assessment. This was not recorded in the safeguarding records.
  20. In February, the support staff wrote to the DWP on behalf of Miss Y to ask for her father to be removed as appointee.
  21. In May 2017, the DWP visited Mr Y and revoked his appointeeship. The Council said the debt was Miss Y’s responsibility and would not be waived.
  22. In July, Miss Y gave consent to Ms X to act on her behalf and in August Ms X complained to the Council. Despite having this authority and being asked to respond to Ms X, the Council wrote to Miss Y.
  23. Ms X says Miss Y did not understand she had money in her own right. Only when she moved to the supported living accommodation and her support workers noted Mr Y was not giving her enough money to pay the bills did she understand this. Miss Y now manages her own finances but has issues explained fully and in an appropriate way to support her to do that.
  24. The Council’s investigation report says the social worker understood Miss Y did not want to challenge her father as she was concerned about the impact on their relationship. It says “at no point” while Miss Y’s permanent address remained at Mr Y’s home, did she approach her social worker or support staff to ask for help to find other ways to manage her finances”. It was only in November 2016, after the social worker had helped her find supported living accommodation, that Miss Y said she wanted control of her finances. It also found that a safeguarding alert were not required in 2014, because Miss Y was aware Mr Y was not paying her costs but wanted him to continue as appointee. A safeguarding alert was also not necessary in 2016 because Miss Y was not experiencing significant harm.
  25. The Council accepts it could have managed the safeguarding alert differently by making more detailed records. It also found its fairer charging policy and guidelines for financial protection do not contain specific procedural information on how to:
    • support individuals at risk of accumulating care cost arrears
    • support individuals with a DWP appointee or other agent
    • use correspondence to provide information
    • work between departments to support individuals in these situations.
  26. The Council’s investigation report recommends it develops a procedure to cover these issues.
  27. The Council suggests Miss Y make a court application to recover the money from Mr Y or contact the police and ask the magistrates court for a restitution order. Miss Y does not wish to take this action as her relationship with her father is important to her and she is fearful of the harm it would cause.

Was there fault which caused injustice?

  1. As the DWP had made Mr Y appointee, it had been satisfied she needed support around finances. The Council knew this and that Mr Y dealt with both Miss Y’s finances, and her correspondence. It knew Mr Y was not spending Miss Y’s benefits in her best interests and it had noted concerns about her financial situation as she seemed not to have much money. It also believed Mr Y may have needed support to understand his responsibilities. Despite all this it did not take any action to protect Miss Y.
  2. The Council was clear it had no reason to doubt that Miss Y had the mental capacity to manage her finances. However, it should also have been clear she needed support with this and to understand the implications of not paying care costs. I saw no evidence of support provided to her over this. It should have completed an assessment of Miss Y’s needs around her finances so it knew what support she needed; I saw no evidence this had been done adequately
  3. I have concluded, on the balance of probability that the Council did not give Miss Y sufficient information or support to make an informed decision about who should manage her finances. I saw no records of support provided to Miss Y to ensure she understood the direct payments agreement she signed. I also note that the Council wrote to Miss Y directly despite knowing Mr Y was responsible for her finances, given that she had no income other than benefits. It also wrote to Miss Y despite being asked to respond to Ms X. It had not considered her needs around communication despite knowing that she needed support in these areas. It was at fault for not having properly assessed and planned for Miss Y’s needs around communication.
  4. Miss Y is a person who has needs for care and support which mean she may not be able to protect herself. She was also subject to potential financial abuse as described by the Council’s own safeguarding policy and procedures. The Council should have considered action under its safeguarding procedures as early as March 2014 and certainly by July 2014. I saw no evidence it considered this.
  5. The second principle underpinning all adult safeguarding work is that it is better to take action before harm occurs (paragraph 9). In this case, the Council failed to recognise that Mr Y’s actions could potentially result in significant harm to Miss Y. Miss Y has only benefits to live on and now has a debt of almost £3,000.
  6. I cannot say that if the Council had properly considered this under its safeguarding procedures, it would have gone ahead with a full safeguarding enquiry. However, the Council does have discretion to investigate even where there is not a duty to do so. It could have used the safeguarding process to involve the DWP as early as March 2014, and this could have avoided much of the arrears. It could also have provided an advocate to support Miss Y to make an informed decision to resolve the situation with minimum risk to her relationship with Mr Y. Even if it had signposted her to an appropriate advice service such as the one she is now using, she could have had an opportunity to make an informed decision. The situation had to be resolved at some point and Miss Y did consent to action once her support workers and adviser helped her understand the situation and her options.
  7. Regardless of whether, with proper consideration, the Council found this was a safeguarding matter, it should have recognised the potentially significant impact on Miss Y. It should have acted to reduce the impact on her.
  8. It was right that the social worker did not complete a mental capacity assessment if she had no reason to doubt her capacity. However, this should have been recorded properly in the safeguarding record and alternative action considered.
  9. I have concluded that the Council should have acted to resolve this potentially abusive situation by July 2014. At this point, Mr Y had said he would not pay because he thought it should be free, had arranged a payment plan and failed to pay as arranged. The Council had threatened court action and was unclear whether Mr Y understood what was expected or if he needed support. It was clear Mr Y was not using Miss Y’s benefits in her best interest and there was no evidence this was likely to change. He was ultimately putting her support at risk. The Council should therefore waive all arrears above £828.14; the amount outstanding at that time. It should also pay Miss Y £350 for the distress, time and trouble it caused her. It may deduct this from the remaining arrears. This has caused her significant and avoidable distress, time and trouble.
  10. The support workers from the Care Provider are to be commended for their prompt and persistent action once they were aware of the circumstances. Had they not provided the support they did, Miss Y could have been subject to court action and more distress.

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Agreed action

  1. To remedy the significant and avoidable distress, time and trouble it caused, I recommended the Council:
      1. Apologizes in writing to Miss Y, setting out the faults identified above and the actions it has taken, and will take, to prevent similar problems in future.
      2. Waives arrears above £828.14
      3. Pays Miss Y £350 (or deduct this from any remaining debt after recommendation a) is completed)
      4. Ensures assessments and support plans address finances adequately when there is any indication that the person needs support in that area.
      5. Ensures assessments and support plans address communication needs adequately when there is any indication the person may need support in this area.
      6. Takes action to ensure all staff are aware to check whether the situation fits within the description of abuse set out in its own framework. Also, to ensure the principles of safeguarding are considered when a safeguarding concern is received.
      7. Ensures decisions about safeguarding are properly recorded and detailed.
      8. Reviews safeguarding training to ensure these are made clear.
    • The Council should complete recommendations a), b) and c) within one month of the final decision and d) - h) within three months of the final decision.
    • The Council should provide evidence of actions taken to the Ombudsman. This should include a copy of the apology letter, confirmation of the payment and/or adjustments to the outstanding amount, also the action plan to deal with recommendations d) - h).

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Final decision

  1. I have completed my investigation and uphold Ms X’s complaint that the Council:
    • failed to properly explain to Miss Y about her finances and having an appointee;
    • did not take action although it knew Miss Y’s appointee was allowing arrears to accrue;
    • expects Miss Y to repay the arrears although she did not know about them.
  2. I am satisfied that, the actions the Council has agreed will put right the injustice it caused as far as possible.

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Investigator's decision on behalf of the Ombudsman

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