Summary: The Council should have recognised far sooner that it should support Mr X with managing his finances. It should also have responded more quickly to his complaint. The Council has now agreed to waive the debt which accrued most recently and has apologised to Mr X. It will also make a payment to Mr X in recognition that its failure to respond promptly to the complaint caused additional distress to Mr X and his family.

The complaint

1. Mr X’s advocate says the Council failed to properly support Mr X (as I shall call him) with managing his finances although it had evidence to show he was unable to do so himself. As a result he accrued debts, some of which his family paid, which caused family tensions.

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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 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

4. I considered the information supplied by Mr X’s advocate and by the Council. All parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

5. 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.
6. 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.

7. 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.
8. 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?

What happened

9. Mr X lives in supported accommodation. Mr X says that since 2015 when he was 18, he has been asking for help from the Council’s adult social care team in managing his finances. He had problems caused by gambling and was unable to pay the client contribution he was assessed to pay towards his care and support package. He ran into debt. Mr X says that on a couple of occasions his father paid off his debts for him which created tension within his family.
10. The Council completed an assessment of his needs in 2018 and concluded that Mr X needed support with managing his money. It said that need could be met with help from his supported living provider.
11. At the time of Mr X’s review in 2019, his supported living provider told the Council Mr X was paying them back the money he owed.
12. In 2020 the Council assessed Mr X again. Mr X said he was still struggling to manage his money and getting into debt. He asked for more help. The Council undertook an assessment of Mr X’s capacity to manage his own money: it concluded he lacked capacity to do so. He was referred to the Council’s Appointee and Deputy team for them to manage his finances. He had accrued a debt of £9000.
13. In October 2021 Mr X complained to the Council, with the help of his advocate, about the way it had failed to support him previously despite the number of times he (and his family) had asked for help.
14. The Council did not respond until June 2021. It said “There are no previous MCAs on record and assessments cannot be used in retrospect. Prior to this MCA and best interest decision making, we were of the belief (Mr X) had the capacity to manage his financial affairs with the support provided. Prior to the MCA been completed, we had not received any other contact from (the supported living provider) with concerns about (Mr X)’s ability to manage his finances”. The Council said however that it had not been told in a timely way by the supported living provider that a debt was accruing, and it agreed it could have acted sooner. It offered to waive half the debt.

15. Mr X’s advocate complained to us on his behalf. She said Mr X was frustrated that the Council had not listened to him or his family, especially as he had now been assessed as lacking the capacity to manage his own finances. He believed the Council had missed many opportunities to support him sooner. She said he was also upset that it had taken the Council eight months to reply to his complaint.
16. The Council has now reviewed its earlier response to Mr X and written to his advocate again. It said its adult social care team had not been told either by the supported living provider or by its own debt recovery team that the debt was accruing: it said “We have therefore reached the conclusion that (Mr X) could have had a mental capacity assessment at an earlier stage, and that we might have been able to provide him with more effective support from this time to prevent these debts accruing.” The Council agreed to waive the whole debt. It also apologised to Mr X for the distress its actions had caused.

Analysis

17. The Council acknowledges it was at fault in the way it failed to support Mr X sooner by assessing his capacity to manage its finances. It has acted appropriately now by waiving the debt and apologising for the distress its failures had caused.
18. There was also fault in the way the Council delayed in responding to Mr X’s complaint. The Council should recognise the impact of that delay.

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Agreed action

19. Within one month of my final decision, the Council will apologise to Mr X for the delay in responding to his complaint;
20. Within one month of my final decision, the Council will review the timescales for its complaint responses and let me know how it intends to expedite such responses in future;
21. Within one month of my decision the Council will also make a payment to Mr X of £300 to recognise the distress caused by that additional delay.

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Final decision

22. I have now completed this investigation. I find there was fault on the part of the Council which caused injustice to Mr X: completion of the recommendations above will remedy the injustice.

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Investigator's decision on behalf of the Ombudsman