London Borough of Barnet (18 011 728)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 26 Aug 2019

The Ombudsman's final decision:

Summary: Mr X complains about the way the Council dealt with the late Mrs Y, and its communication and complaint handling. The Ombudsman finds the Council was at fault in all these areas and this caused Mr X disproportionate difficulties. The Council has put right the financial injustices it caused Mrs Y. It has also agreed to apologise, pay Mr X £500 for his time, trouble, frustration and stress and take action to avoid similar problems in future.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains on behalf of his mother, the late Mrs Y, and himself, that the Council:
      1. says Mrs Y’s care home placement was permanent from the start, although the Council only agreed this on 11 July 2016 at a delayed review.
      2. did not invite family or an independent representative to the mental capacity assessment and caused distress to Mrs Y by assessing her in an aggressive manner.
      3. did not communicate with Mr X about Mrs Y’s finances and sent invoices and correspondence to Mrs Y at the care home although she could not deal with them.
      4. did not advise Mr X it was appointee and receiving Mrs Y’s benefits, and applied to be appointee after it had issued proceedings against Mrs Y.
      5. delayed, for several weeks, paying the balance of Mrs Y’s appointee account to the solicitors following the Court awarding deputyship to Mr X.
      6. failed to stop council tax invoices despite knowing Mrs Y was exempt and issued proceedings against her for non payment; it sent this to her at the care home. It also invoiced Mrs Y for the court costs.
      7. did not deal with his complaints adequately.
      8. did not agree to the release of £607.60 of Mrs Y’s personal allowance from the care home into her personal bank account.
      9. placed his mother, Mrs Y, in a care home in November 2015 despite the urgent response team finding she could remain at home.
      10. treated Mr X as liable for the council tax at Mrs Y’s home and investigated him for fraud without good reason.
  2. Mr X says the Council disregarded Mrs Y’s welfare and created disproportionate difficulties. It also put Mr X to much time, trouble and expense in dealing with the complaint because of the Council’s poor communication and complaint handling.

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The Ombudsman’s role and powers

  1. 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 a council’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)
  2. 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)
  3. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
  • their personal representative (if they have one), or
  • someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended). In this case, Mr X was Mrs Y’s court appointed Deputy and a suitable person to complain on her behalf.

  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). In this case, we have exercised discretion to consider matters back to 2015. This is because the issues complained about are rooted in events in 2015, are significant, and Mr X came to us within one year of completing the Council’s complaints process.

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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

Background

Assessment

  1. Sections 9 and 10 of the Care Act 2014 (the Act) require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
  2. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
  3. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing.
  4. Where local authorities have determined that a person has any eligible needs, they must meet these needs. It must also give the person to whom the determination relates a copy of its decision.
  5. The Act gives local authorities a legal responsibility to provide a care and support plan. The plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has. The plan may include a personal budget. This is the money the council has worked out it will cost to arrange the necessary care and support for that person.
  6. Section 27 of the Act gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. The Act also puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
  7. Where the local authority is to meet a person’s needs, it must provide a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.

Mental capacity

  1. 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 decide for themselves. It describes when to assess a person’s capacity to decide, how to do this, and how to decide for somebody who cannot do so themselves.
  2. A person must be presumed to have capacity to decide unless it is established that he or she lacks capacity. A person should not be treated as unable to decide:
  • because he or she makes 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.
  1. The council must assess someone’s ability to decide, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
  2. 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:
  3. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made for a person who lacks capacity must be in that person’s best interests.
  4. Section 4 of the Act provides a checklist of steps that decision makers must follow to decide what is in a person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. The decision maker must consider, if appropriate, the views of “anyone engaged in caring for the person or interested in his welfare”.
  5. The court of protection might need to decide what is in the person’s best interests
    • If there is a conflict about what is in a person’s best interests, and
    • all efforts to resolve the dispute have failed.

Best interests

  1. The Mental Capacity Act Code of Practice sets out what should happen when deciding for a person who lacks the capacity to do so. It says:
    • “Any staff involved in the care of a person who lacks capacity should make sure a record is kept of the process of working out the best interests of that person for each relevant decision, setting out:
      1. How the decision about the person’s best interests was reached
      2. What the reasons for reaching the decision were
      3. Who was consulted to help work out best interests, and
      4. What particular factors were taken into account”.
  2. “A decision-maker may be faced with people who disagree about a person’s best interests”. “The decision-maker will need to find a way of balancing these concerns or deciding between them”. “Ultimate responsibility for working out best interests lies with the decision-maker”.
  3. The Code of Practice also says “any staff involved in the care of a person who lacks capacity should make sure a record is kept of the process of working out the best interests of that person for each relevant decision”. The record, which should be kept on the person’s file, should set out:
    • How the decision was reached
    • What the reasons were
    • Who was consulted
    • What particular factors were considered.
  4. Where a person has no available family or friends, and no attorney to represent them for decisions about moving into a care home, an Independent Mental Capacity Advocate (IMCA) must usually be appointed. The IMCA supports the person and provides information to help decide what might be in their best interests. They can also challenge decisions which they consider are not in the best interests of the person they represent.

Appointees

  1. An appointee is responsible for making and maintaining any benefit claims for someone who cannot manage their own finances. There can only be one appointee acting for 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. An appointee does not have authority to deal with any other aspects of a person’s finances.

Powers of attorney

  1. Powers of attorney are legal documents agreed and signed while a person still has the mental capacity to make their own decisions. They allow people to choose, in advance, who they want to decide about their health and welfare and/or their finances and property, on their behalf, when they cannot. Decisions made by an ‘attorney’ on the person’s behalf, must be in the person’s best interests. Separate powers are required for health and welfare, and for finance and property. Powers of attorney end with a person’s death.

Deputyship

  1. A Deputy is appointed by the Court of Protection to act for a person who lacks the mental capacity to do so themselves.

Court of Protection

  1. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
  2. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that cannot be resolved in any other way. The Court of Protection
    • decides whether a person has capacity to make a particular decision for themselves
    • makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions
    • appoints deputies to make decisions for people lacking capacity to make those decisions
    • decides whether a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) is valid, and
    • removes deputies or attorneys who fail to carry out their duties.
  3. If there is a need for continuing decision-making powers and there is no relevant EPA or LPA, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys and court appointed deputies and produces detailed guidance for them.

Deprivation of Liberty

  1. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to get authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.
  2. People subject to a DoLS must have a representative appointed; the Relevant Person’s Representative (RPR). The RPR is usually a relative or friend in regular contact; the RPR must represent the person and make sure decisions are made in their best interests.

What happened

  1. Mrs Y lived alone in a flat. She had disabilities and a progressive neurological condition which caused her some difficulty with mobility, memory and cognition.
  2. In October 2015, Mr X contacted the Council asking for help with bathing for Mrs Y following advice from her GP. The next day the Council’s urgent response team telephoned to ask Mr X for more information and visited three days later to complete an assessment. Mr X told the Council Mrs Y could no longer bath, had out of date food and needed prompting to take her medication. He also said she could not manage domestic chores and had left some plastic on the cooker which set off the smoke alarm. Mrs Y was unsure that she needed help, but Mr X was sure she did. She wanted to remain at home if possible. The Council noted Mrs Y had substantial difficulty taking part in the process because of her hearing difficulties. It did not consider Mrs Y’s mental capacity at this stage but noted that, due to her cognitive impairment, her situation was unlikely to improve in terms of independence.
  3. The assessor, said they would consult with their manager about what support the Council could offer, pending a full social care assessment. The manager agreed the Council would provide two calls per day to prompt with medication and personal care. The Council contacted Mrs Y and advised it had agreed the package, but it could not contact Mr X.
  4. Ten days after the visit and before the package of care had started, Mrs Y fell and was admitted to hospital. Mrs Y was later transferred to another hospital for further assessment for needs to be “managed safely in the community”.
  5. The Council assessed Mrs Y’s needs in preparation for discharge. The assessment noted that she had substantial difficulty taking part in the process due to her cognitive impairment. It also said a mental capacity assessment had been completed but the Council says it has no record of the assessment.
  6. The Council’s records of discharge planning note Mrs Y’s GP had concerns and had referred her for a social care assessment. Also that Mr X had concerns about the risks to her. He said when she had left plastic on the hob and a water leak from the flat above had run into her light sockets, she showed no sense of awareness of the risks. He also said Mrs Y would sleep throughout the day if not woken and would leave her front door open including at night. Mr X had been visiting twice a day and a friend had been making sure she had food. The Council noted that Mr X said he thought Mrs Y had deteriorated since the home visit. He also said her cognitive ability had been declining over the previous year.
  7. The Council noted Mrs Y said she wanted to stay in hospital. This was because she felt secure and did not think she could cope at home looking after herself. However, she could not say what help she might need at home. A physiotherapist and an occupational therapist advised that Mrs Y would not be safe at home even with a package of care. The health and social care professionals involved recommended 24 hour supervision and a care home was needed. Mr X says he asked for an OT to visit Mrs Y’s home and believed the decision to place Mrs Y in a care home had been made before he arrived. The decision was not specifically referred to, or recorded as, a best interests decision.
  8. Mr X asked the Council to ensure the care home was local so Mrs Y’s elderly friends could visit. The Council gave him a list of care homes and Mr X chose one. In November, Mrs Y was discharged to a care home suitable for someone with a cognitive impairment.
  9. In December 2015, about two weeks after Mrs Y moved to the care home, her allocated worker from the Council contacted the home to ask about her. The Care Provider reported no concerns and the worker planned to complete a review on return from leave. The Council sent Mr X a finance form to complete as he had a mandate to deal with Mrs Y’s bank account. A mandate allows a person to use and access someone else’s bank account but does not allow someone to do this if the person does not have the mental capacity to decide for themselves. Mr X says he could not complete the form because no one could tell him whether Mrs Y had been placed on a temporary or permanent arrangement.
  10. On 24 December 2015, the Council assessed Mrs Y as lacking capacity to decide whether to stay at the care home for care and treatment. This was because it had to consider a DoLS application. It consulted Mr X by phone and issued a Deprivation of Liberty Safeguards (DoLS) standard authorisation for six months. The Council identified Mr X as the Relevant Person’s Representative (RPR).
  11. In June, when Mrs Y was assessed for the DoLS renewal, the Council realised it had not completed a review of her placement.
  12. The Council completed the review in July and found Mrs Y was to remain in the care home permanently. Mr X agreed with this. The Council acknowledges that it should have completed a mental capacity assessment during the review. The meeting record notes that Mr X agreed the tenancy on Mrs Y’s home would be given up and he would follow up with the landlord. He asked the Council to provide a formal letter confirming the placement was now permanent as he would not be able to end the tenancy without confirmation. The worker stopped the housing benefit and council tax. Mr X says he did not agree to this.
  13. In August, Mr X wrote to the Council asking for confirmation that Mrs Y’s placement was permanent as he could not end the tenancy without. Ten days later, the Council wrote to confirm the placement was permanent and asked Mr X to complete the financial form which he completed and returned. It assessed Mrs Y as having to contribute £130.70 per week from £151.20 of assessable income. At this stage, Mrs Y was liable both for her care contribution and her rent because no one had the authority to end the tenancy on her behalf. She also had to still pay utility bills, home insurance and other costs for her home so it was clear it was not possible for her to pay this amount. Mr X says the Council issued proceedings against Mrs Y without contacting him, knowing she was unable to deal with it. It also charged her for the court costs though it has since refunded this.
  14. The Council wrote to Mr X and Mrs Y on several occasions about the outstanding care fees and confirmed it had cancelled the council tax support and housing benefits. Mr X wrote to the housing benefits team to advise that Mrs Y’s home was being kept clean and tidy for her return until someone with the authority told him otherwise.
  15. In March 2017, Mr X wrote to the Council to complain about the lack of communication and its failure to deal with his concerns about the charges.
  16. In April, the Council became appointee for Mrs Y. The application states “I declare that I have discussed my appointment with other family members or next of kin and that they do not object to my application. This applies to corporate appointees as well”. I saw no record of communication with Mr X about this. The Council also investigated whether Mrs Y’s property was occupied as it had been advised Mr X may be living in the property, but it did not substantiate this. Mr X says there was no reason for the Council to suspect anyone was living there.
  17. The Council decided to apply to the Court of Protection for deputyship. The Council wrote to Mr X to advise it was applying to the Court of Protection to end Mrs Y’s tenancy and to be deputy. It also advised Mr X that it was appointee. It invited Mr X to apply for deputyship. Mr X says he did not receive this letter.
  18. In May 2017, the Council completed a mental capacity assessment on Mrs Y around her finances and property; this took place over two visits. The Council says it could not contact Mr X. Records suggest this was a single telephone call; I saw no letter inviting him to attend or advise him it would happen. During the assessor’s visit, the care home staff advised the assessor that Mr X said he did not want to be involved in Mrs Y’s affairs. Mr X says he had not said this and finds it hard to believe staff at the care home would have said this. The Council found Mrs Y did not have the capacity to deal with her finances and property, and to end her tenancy. During the assessment, Mrs Y said she thought Mr X would be able to help her with managing her money. The Council says Mrs Y agreed to have help from the Council in managing her finances; this is not recorded within the assessment. Mr X later complained that Mrs Y reported she was distressed by the aggressive manner of this assessment; I saw no evidence of this. Council records note a call from the care home the following week advising Mr X was stepping down.
  19. Throughout April, May, and June, the Council corresponded with Mr X through his solicitors with regards the financial assessment, council tax and other related issues.
  20. In June, the Council applied to the Court of Protection for deputyship; Mr X objected to the application. The Court did not grant the Council deputyship instead, Mr X made an application to the Court. The Court decided that Mrs Y’s tenancy should be ended.
  21. In January 2018, the Council ended its role as appointee.
  22. In April, the Council sent an annual financial review letter to Mrs Y at the care home and Mr X wrote to complain about this. The care home advised it could only release the money it held for Mrs Y, £607.60, back to the Council.
  23. In May, the Council waived Mrs Y’s contribution to her care fees from the date the housing benefit was cancelled until the tenancy was terminated.
  24. In July, the Court of Protection appointed Mr X deputy.
  25. In August, the care home advised that since it had no evidence of Mr X’s Deputyship, it could not pay him the money. It said it had asked the Council to authorise this but had not had a response. Mr X’s solicitors then sent the care home the court order to evidence his Deputyship and asked it to pay over the money.
  26. In September, Mr X complained to the Council again; he said £8,859.45 was still outstanding and listed several other issues. The Council processed a refund of £8,859.43, which it had delayed by six weeks from 26 July to 7 September 2018.
  27. In November 2018, Mr X wrote to the care home asking again for the £607.60 to be paid over.
  28. In January 2019, the Council met with Mr X. It apologised for the confusion it had caused and agreed to provide:
    • information about the court proceedings,
    • a breakdown of income used to assess Mrs Y’s finances,
    • an explanation of how the Council calculates charges for residential care,
    • a reassessment on receipt of further information.
  29. Mr X agreed to provide information about Mrs Y’s benefits and her outgoings.
  30. Two weeks later, the Council wrote to Mr X to confirm the discussion at the meeting and to explain what had happened with the court proceedings. It apologised again for the confusion and confirmed that it had withdrawn proceedings. The Council also explained how it had worked out Mrs Y’s contribution to her charges. It offered some advice on how to query the benefits calculation with the Department of Work and Pensions (DWP).
  31. In February 2019, Mr X formally complained to the Council. He said Mrs Y had been in hospital for almost three months. The care home had ended her placement and put her belongings into storage, but the Council was still invoicing for her contribution to the care home fees. The Council did not respond to this.
  32. In April, Mr X wrote to the Council. He said the finance department had told him to ignore the invoices for Mrs Y’s contribution to care fees, but he couldn’t ignore this. He said he had also received a calculation for Mrs Y’s contribution for the coming year, although she no longer had services in place.
  33. The Council apologised for addressing correspondence to Mrs Y at the care home and said it should have managed correspondence more appropriately. Financial assessment officers should have written to Mr X rather than Mrs Y. It said the annual finance review letter was automated and sent in error; the Council apologised.
  34. The Council’s council tax department understood Mrs Y’s placement to be temporary from the information given by Mr X, so she remained liable for council tax. The Council has since arranged a backdated exemption.
  35. The Council says it did not investigate Mr X for fraud but believed he was living at Mrs Y’s property permanently. This was because he used the address for correspondence and other arrangements such as a mobile phone. It therefore believed he was liable for the council tax from February 2017. However, it has since accepted he was not using it as a permanent residence, so extended Mrs Y’s liability for the council tax and, subsequently, her exemption. Mr X says there was never reason for the Council to believe this and it could have checked the utility bills or asked to see the property which would have made it clear.
  36. The Council says it did not refuse the release of £607.60 from the home but was no longer appointee and could not do this. Mr X is now deputy and therefore the care home should release any surplus funds on his instruction.
  37. Since the first draft of this decision, Mrs Y has sadly died.

Was there fault which caused injustice?

  1. The urgent response team did put a package of care in place so Mrs Y would be cared for at home. The care package took too long to implement, and the Council was at fault in this. However, any injustice caused to Mrs Y by this cannot now be put right as she has since died.
  2. Mrs Y’s circumstances were different following her hospital admission. The Council, having consulted with health professionals, Mr X and Mrs Y, decided residential care was the best option. The Council should have a completed mental capacity assessment on file. It should also have carried out a formal best interests decision process, suitably recorded, to evidence this decision was in Mrs Y’s best interests. It did not do this and was at fault but, I do not consider this caused significant injustice as the outcome was unlikely to have been different.
  3. Given Mrs Y’s situation, it should also have completed a mental capacity assessment about dealing with her finances as she had no legal representative. Mr X only had a mandate for her bank account; this was not enough for him to decide on her behalf about ending her tenancy or benefits. In fact, given that Mrs Y was unlikely to have had the mental capacity to deal with her finances at this stage, the mandate was unlikely to have been valid. I saw no consideration of Mrs Y’s tenancy and how that would be managed at the time of placement, so it seems the placement was intended to be temporary at the start. The Council should have considered this. It should also have applied to the Court of Protection, if Mr X was not willing to do so, at the point it realised Mrs Y may not be able to decide about her finances. The Council was at fault here and although I cannot say this caused significant injustice, this was only due to Mr X’s persistence with his complaint.
  4. The Council delayed completing the review by several months and was also at fault in this. However, given the progressive nature of her neurological condition, Mrs Y was not expected to improve and become more independent. I have therefore concluded the placement was likely to be made permanent at review. I agree with Mr X that the placement was not permanent until this decision was made. This delay in deciding whether the placement was permanent affected the charging. As no-one was able to deal with Mrs Y’s tenancy, she also became liable for both rent, council tax and care home fees. The Council was at fault in the way it dealt with this and caused Mr X significant and avoidable time, trouble, and frustration. It also caused Mrs Y a significant financial injustice but has since remedied this.
  5. When it completed a mental capacity assessment in May 2017, the Council did not speak or communicate directly with Mr X. It took the Care Provider’s word that he did not want to be involved. It should have made more effort to contact him to check this out and was at fault here. It had been writing to him about the financial situation yet did not write to him about the issues around Mrs Y’s care. I cannot now decide whether Mrs Y had good reason to complain about this assessment. However, had Mr X been present, I consider Mrs Y would have been less likely to have been upset by the assessment. I therefore accept that, on the balance of probability, Mrs Y was avoidably distressed by the assessment though I cannot say this was because of an aggressive manner.
  6. The Council did apply to be appointee after it had issued proceedings against Mrs Y which was inappropriate given that Mr X was potentially available. It also stated on its application that it had discussed the matter with family members although it had not. This was fault and I am particularly concerned about this.
  7. The Council was right that, once it was no longer appointee, it could no longer deal with Mrs Y’s finances and pay Mr X the £607.60. The Care Provider should have released the £607.60 to Mr X in August 2018 when he provided evidence of his Deputyship. However, I have upheld Mr X’s complaint relating to this because Mr X had complained that the Care Provider would not release it. The Council should have supported Mr X in achieving this.
  8. The Council does not dispute that its communication was poor; it sent invoices and demands to Mrs Y at the care home. This was inappropriate and although it apologised for this, it caused unnecessary difficulty for Mr X. Fortunately, this did not cause any direct injustice to Mrs Y. The Council says it did write to Mr X to advise it was applying for appointeeship and deputyship, but Mr X says he did not receive the letter. I cannot be certain either whether the Council sent the letter, or that Mr X did not receive it. However, the difficulty Mr X had in dealing with the Council was excessive and caused him significant and avoidable time, trouble, frustration and stress. The Council should have supported Mr X to understand and navigate the process from the start. Instead it made it more difficult and added stress to an already difficult situation.
  9. The Council was entitled to consider whether someone was living at Mrs Y’s property. It has since made it clear that it was satisfied this was not the case and reversed its decision. It transferred liability back to Mrs Y and she was exempted. Mr X is unhappy about this, but I am satisfied there is no outstanding injustice here except further stress, time and trouble.
  10. I have not detailed all the correspondence and issues arising here, but found the Council was at fault in the way it dealt with Mr X’s complaints. I found it did disregard Mrs Y’s welfare to some degree and did created disproportionate difficulties. It created a catalogue of errors of which many had the potential to cause Mrs Y significant injustice. It is fortunate that there has ultimately been no significant injustice to Mrs Y. However, it put Mr X to considerable, and avoidable, time, trouble and stress, in dealing with the complaint, because of its poor communication and complaint handling.

Agreed action

  1. The Council has already taken some action to put right the injustice it caused. To remedy the outstanding injustice identified above, I recommend the Council:
    • Apologise to Mr X for the considerable difficulty it has caused him.
    • Pay Mr X £500 for the significant and avoidable time, trouble and distress it caused.
    • Ensure that no further invoices are issued for services which have not been provided.
    • Arrange training and awareness raising to:
      1. Ensure staff do not sign declarations with which they have not complied.
      2. Ensure that staff consider an application to the Court of Protection at the earliest opportunity when someone without mental capacity to decide about their finances does not have an attorney or deputy.
      3. Ensure staff who deal with mental capacity assessments record assessments and best interest decisions properly and make adequate effort to involve relevant people.
      4. Ensure staff who deal with applications for appointeeship consult with family members or next of kin.
      5. Ensure invoices are not issued for services which have not been provided, and staff correspond with the right person.
      6. Ensure people dealing with care services for the first time are supported to understand the process fully, in addition to providing written information.
    • Review the complaint handling in this case and take action to ensure similar problems do not arise in future.
  2. The Council should complete these recommendations within three months of my final decision and submit evidence of the completed actions to the Ombudsman. Suitable evidence would include:
    • A copy of the apology letter.
    • Confirmation of the payment.
    • An action plan showing actions to be taken and dates for completion and by whom, covering all the remaining recommendations.

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Final decision

  1. Subject to further comments by Mr X and the Council, I intend to uphold Mr X’s complaints that the Council:
      1. says Mrs Y’s care home placement was permanent from the start, although the Council only agreed this on 11 July 2016 at a delayed review.
      2. did not invite family or an independent representative to the mental capacity assessment and caused distress to Mrs Y by assessing her in an aggressive manner.
      3. did not communicate with Mr X about Mrs Y’s finances and sent invoices and correspondence to Mrs Y at the care home although she could not deal with them.
      4. did not advise Mr X it was appointee and receiving Mrs Y’s benefits, and applied to be appointee after it had issued proceedings against Mrs Y.
      5. delayed, for several weeks, paying the balance of Mrs Y’s appointee account to the solicitors following the Court awarding deputyship to Mr X.
      6. failed to stop council tax invoices despite knowing Mrs Y was exempt and issued proceedings against her for non payment; it sent this to her at the care home. It also invoiced Mrs Y for the court costs.
      7. did not deal with his complaints adequately.
      8. did not agree to the release of £607.60 of Mrs Y’s personal allowance from the care home into her personal bank account.
  2. I do not intend to uphold Mr X’s complaints that the Council:
      1. placed his mother, Mrs Y, in a care home in November 2015 despite the urgent response team finding she could remain at home.
      1. treated Mr X as liable for the council tax at Mrs Y’s home and investigated him for fraud without good reason.

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Investigator's decision on behalf of the Ombudsman

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