Summary: Mr X’s legal representative complained the Council, acting as Mr X’s Appointee, failed to safeguard Mr X’s finances. He says that Mr X’s care debts therefore increased. We found the Council appropriately considered Mr X’s situation when acting as his Appointee. It decided to prioritise clearing past debts and there is no evidence of fault in how it made this decision.

The complaint

1. Mr X’s representative, Mr Y, complains the Council failed to safeguard Mr X’s finances when the Council acted as his Appointee from April 2017 until January 2018.
2. Mr Y complained that the Council has refused to write off the outstanding care debt when Mr X has no realistic prospects of being able to pay it off and when the Council’s failings contributed towards the size of the debt.

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The Ombudsman’s role and powers

3. 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)
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)
5. The Council decisions complained about occurred more than 12 months before Mr Y complained to the Ombudsman. However, I have exercised discretion to investigate them as their consequences only became apparent when Mr Y was appointed as Deputy by the Court of Protection.
6. 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

7. I made enquiries of the Council and considered evidence it provided including its mental capacity assessment of Mr X.
8. Mr 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

Background

9. Councils can apply to the Department of Work and Pensions (DWP) to deal with the benefits of someone who cannot manage their own affairs. Appointees must spend the benefits, paid direct to them, in what they decide are the person’s best interests.
10. Appointees can also find out the person’s eligibility for benefits, make claims, ensure people get the payments they are entitled to and deal with queries about them from DWP.
11. The powers of an Appointee are different to those of a Deputy, appointed by the Court of Protection. A Deputy can make property and financial decisions on the person’s behalf and manage their money from any source of income. Appointees can only receive and organise spending of benefits. They cannot manage money from other incomes such as savings.

What happened

12. Mr X had, for several years, paid towards the cost of home care arranged for him by the Council. The Council carried out financial assessments and reviews to keep under review his ability to pay towards the cost of care.
13. The Council decided, in September 2016, that Mr X had increasing problems understanding and managing his finances. It carried out a mental capacity assessment that recommended the Council become his Appointee. His only income was from DWP benefits. The assessment concluded Mr X did not have capacity to manage his finances, putting him at risk of potential abuse and exploitation.
14. In April 2017, the Council was made Mr X’s Appointee for Mr X’s DWP benefits. It was paid his benefits directly and decided what they were spent on. It continued to be his Appointee until January 2018 when Mr X’s representative, Mr Y took over.
15. As Appointee the Council decided it was in Mr X’s best interests to use his income from benefits to pay off his debts which it understood were around £10,000 and increasing. This was because he was being charged additional fees to cover his debts, including being visited by loan companies demanding payments. It decided this was the priority, rather than covering Mr X’s ongoing care costs, because otherwise his finances would have got worse.
16. In May 2017, the Council gave Mr X access to the payments he received from his DWP benefits. This was after it found Mr X became distressed at not being able to access funds. This decision was made following discussions between the Council and the social workers involved directly in Mr X’s care and support.
17. The Council then it applied to the Court of Protection for a Deputy to take on the case in June 2017. In January 2018 Mr Y’s legal firm was appointed by the Court of Protection as Mr X’s deputy for property and finance.

Mr Y’s complaint to the Council

18. As the new Deputy, Mr Y asked the Council for information about Mr X’s outstanding debts. The Council advised about the accrued care costs.
19. By March 2019 Mr X had moved into residential care. Mr Y asked the Council to write off his outstanding debts from home care. The Council offered a repayment plan. Mr Y said this was unaffordable. Mr Y complained, in April 2019, about the situation. He said the Council had, when acting as Mr X’s Appointee, allowed him to keep spending unwisely. He said the Council had not acted in Mr X’s best interests.
20. The Council said it had supported Mr X to manage his finances as best as it could when it was his Appointee. It decided at that time that it was better to use Mr X’s benefits to pay off his debts, rather than to pay ongoing costs of social care.
21. The Council said it would consider repayment options. Alternatively, it would consider bankruptcy proceedings. Mr Y then complained to the Ombudsman. He provided me with receipts showing Mr X had paid for holidays and other miscellaneous spending when the Council had been his Appointee. He said it had allowed him to keep spending unwisely, despite knowing the risks.
22. In response to my enquiries the Council confirmed it had decided it was best to pay Mr X’s debts and to put collection of his care fees on hold. Mr X’s debts had not significantly changed during its Appointeeship. It had worked with companies Mr X owed money to, to prevent this increasing by offering him any new loans. It had given Mr X access to his benefits from May 2017 because it decided, having regard to his apparent distress that this was in his best interests. It did this following appropriate consideration of his circumstances. The Council has since discussed a repayment option with Mr Y as Mr X’s Deputy.

My findings

23. As Mr X’s Appointee the Council had to spend his benefits in what it decided was Mr X’s best interests. It could not stop him continuing to make unwise financial decisions as it had no direct control over, or access to his bank account.
24. Its officers used their judgment to decide it was best to first use his benefits to pay off Mr X’s debts. There was no fault in how it made this decision, appropriately considering relevant matters including Mr X’s debts and the consequence of them increasing if left unpaid.
25. In May 2017 it was concerned about Mr X’s situation and the distress he was in and to promote his wellbeing, It decided to let Mr X access his DWP benefits. There was no fault in how it reached this decision. The Council appropriately considered Mr X’s circumstances including his debts and ongoing care costs in its actions as his Appointee.
26. It then took appropriate action by making an application to the Court of Protection for a Deputy.

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Final decision

27. I have completed my investigation to find there was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman