Summary: Mr B complains the Council pursued him for payment of his relative, Mrs Y’s, care fees. He says the Council wrongly said he received Mrs Y’s pension and benefits. He also says the Council pressured him into applying for deputyship and revoking his appointeeship. Mr B says he could not afford the care fees or the fee for the deputyship application, and the way the Council managed the matter caused him distress and anxiety. We do not find fault in the Council sending invoices for the care fees and encouraging Mr B to apply for deputyship. However, we find fault in how the Council addressed its concerns about Mr B’s management of the appointeeship. The Council has agreed to act to put right the injustice to Mr B.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council pursued him personally for payment of his relative Mrs Y’s care fees. He says the Council wrongly accused him of having Mrs Y’s pension and benefits paid to his own account and coerced him into applying for deputyship, which involved a fee he could not afford. Mr B says he cannot access funds in Mrs Y’s bank so cannot pay the care fees. He says the Council has not properly considered his diagnosis of autism or his mental health and wellbeing, and the way it managed the case caused severe anxiety.

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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 there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I considered the information Mr B provided and spoke to him about the complaint, then made enquiries of the Council. Mr B 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

Law and Guidance

6. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs
7. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance (“the Guidance”).
8. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
9. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
10. In certain circumstances the council must disregard the value of a person’s home from the financial assessment. This includes where the person no longer occupies the property, but it is occupied in part or whole by a qualifying relative. A qualifying relative may include a nephew, where the nephew is aged 60 or over, or is incapacitated. The Guidance says that ‘incapacitated’, is not closely defined. However, it will be reasonable to conclude that someone is incapacitated if they receive disability living allowance, personal independence payments, constant attendance allowance, or a similar benefit.
11. Where a person lacks capacity there are normally three methods through which another person may manage their property and financial affairs:
• A lasting power of attorney – This is where a person makes an advance decision for another person to manage their affairs in the event they become unable to make decisions for themselves
• Deputyship – a deputy is appointed by the Court of Protection (COP) to manage a person’s affairs, in the event that they lack capacity and have not made a lasting power of attorney
• Appointeeship – a person can apply to become an appointee with the Department for Work and Pensions to receive benefits and pension on behalf of a person that lacks capacity
12. The Department for Work and Pension says appointees must:
• Sign the benefit claim form
• Tell the benefit office about any changes which affect how much the claimant gets
• Spend the benefit in the claimant’s best interests
• Tell the benefit office if they stop being the appointee

Background

13. Mrs Y has dementia. Mr B has been Mrs Y’s main carer for several years. He lives in her home several days a week to provide care. The Council first completed a care assessment for Mrs Y in 2018. It found that her needs were met by care from Mr B.
14. In February 2021 Mrs Y went into hospital. Before discharging Mrs Y, the hospital made a referral to the Council for a care assessment. The Council contacted Mr B and found out that he would prefer for Mrs Y to return home without formal care to begin with. The Council agreed a plan for Mrs Y to return home with support from a community matron. She was discharged home in early March 2021.
15. A few days after discharge, the Council completed a formal review of Mrs Y’s care assessment. The review found Mrs Y’s needs had significantly increased following her hospital admission.
16. In the days following the review, the community matron and other staff expressed concerns about whether Mrs Y could receive adequate support at home. The Council therefore arranged a respite placement for Mrs Y at a care home (“the Home”). In April 2021 the Council completed a best interest assessment, which found Mrs Y’s needs would be best met at the Home. It therefore agreed a long-term placement for Mrs Y.
17. The Council completed a financial assessment for Mrs Y. It found she had savings above the upper capital limit so would need to meet the full cost of her care home fees. It noted that Mr B was living in her property. However, it said he was not over 60 years old and did not receive a disability benefit. The Council therefore said a disregard would not apply to the property.
18. Mr B managed Mrs Y’s financial affairs as she did not have capacity to do this herself. However, no one had power of attorney for Mrs Y’s property and financial affairs. Therefore, the Council suggested that Mr B could apply for deputyship for Mrs Y and sent him information on how to do so, including Age UK’s factsheet 22.
19. In late April 2021 a social worker asked Mr B whether he would consider applying for deputyship for Mrs Y. Mr B explained that he was vulnerable and getting support for his mental health and was taking advice from the Citizen’s Advice Bureau (“CAB”). The Council sent Mr B information on applying for deputyship. The Council recorded that Mr B thanked the social worker for this information, indicated he might like to apply for deputyship and would take advice from the CAB.
20. In early June 2021 the Council received a call from a CAB representative, who said Mr B was unsure if he could manage the responsibility of deputyship. Two weeks later the Council noted a conversation with the CAB representative who said that Mr B would like to apply for deputyship but could not afford the initial application fee. The Council also noted that Mr B was receiving Mrs Y’s care home bills but could not pay as he did not have access to Mrs Y’s money. It acknowledged this was causing distress to Mr B. It said it needed to continue to send the invoices by law but would change the bills into Mrs Y’s name and hold off on any recovery action. Mr B confirmed that he had received funding from a charity for the application fee for deputyship.
21. In September 2021 Mr B told the Council that he was receiving bills for toiletries from the Home and could not afford this as he was on universal credit. The Council had contact with the Home, which agreed to place a hold on further bills until the deputyship was arranged. A social worker telephoned Mr B to discuss the financial situation. Mr B said he was still waiting to hear about the deputyship and was becoming very stressed at receiving demands for payment that he could not pay. He said he regretted applying for the deputyship and felt pushed into it by the Council.
22. A Council manager spoke Mr B in October 2021. The manager noted then that Mr B wished to remain as deputy for Mrs Y as the hard work had been done.
23. In late October 2021 a social worker asked Mr B if he had also considered applying to be an appointee for Mrs Y’s benefits. Mr B confirmed that he was already an appointee for Mrs Y’s attendance allowance. He said the allowance was paid into Mrs Y’s account but from early November 2021 it would be paid into his account.
24. Mr B had a fall in November 2021. He told the Council he was feeling very isolated and struggling with his mental health. A social worker advised Mr B to speak to his GP and said she would find out whether there were any community groups she could signpost him to. The social worker also said that Mr B did not need to take on the deputyship responsibility if he was not physically or mentally well enough. She said there would be ongoing management required which could cause additional stress, and if Mr B wanted the Council’s deputyship team to apply then to let her know.
25. In January 2022 the Council told the care home that Mr B now had appointeeship, so could start paying Mrs Y’s weekly personal allowance for toiletries. However, he did not have access to her full funds so would not yet be able to pay off the accrued debt. The Home contacted Mr B in February 2022, then informed the Council that Mr B said he could not pay the accrued debt. The Council’s social worker reiterated her previous email that made it clear Mr B would only be able to pay the personal allowance at present.
26. A different social worker visited Mr B in late February 2022. I have not seen a record of this visit, but other case notes suggest the social worker wished to discuss whether Mr B was now paying the personal allowance to the care home, before making a further best interest decision. Following the visit Mr B emailed the Council to say he no longer wished to apply for deputyship as it had caused significant stress and he was now accused of not acting in Mrs Y’s best interests.
27. In March 2022 Mr B followed up to say he was struggling with his own health and could not continue with the deputyship, even with additional support. There had still not been a decision on deputyship by the COP by this time.
28. The Council raised concerns internally that Mrs B’s debt for her care home fees was accruing and was now at £35,000.
29. In June 2022 the Council decided to make a referral to its own deputyship team. A new social worker met with Mr B. The social worker raised concerns about the management of Mrs Y’s attendance allowance. Mr B said he had spent the money on a boiler repair for Mrs Y’s house and house insurance, which he had kept receipts for. He had also bought food and clothing for Mrs Y, which he did not have receipts for.
30. The social worker also raised concerns that Mr B had been receiving Mrs Y’s state pension besides the attendance allowance. Mr B said he was not aware that he was receiving the pension. The social worker recorded that Mr B showed her bank statements that showed the state pension going into Mrs Y’s bank account. Mr B did not have access to the funds in this account.
31. The social worker noted that Mr B said he did not want to keep the appointeeship so explained he could rescind this in writing to her.
32. Mr B sent the social worker an email rescinding the appointeeship, which the social worker forwarded on to the Department for Work and Pensions (“DWP”). However, a few days later Mr B told the Council that he felt he had been forced into making this decision and did not wish to rescind the appointeeship. The Council passed information about its concerns to the DWP by way of a safeguarding referral.
33. In September 2022 the Council’s financial assessment team sent an email to Mr B that said as appointee Mr B would receive Mrs Y’s attendance allowance and state pension. It said it was concerned he had received £16,000 since April 2021 but not paid any to the Council for the care fees. It asked Mr B to make full payment of the state pension and attendance allowance income Mr B had collected. It also said the Council intended to apply to be Mrs Y’s appointee and deputy going forward but asked that Mr Y relinquish his appointeeship. A few days later DWP removed Mr B as appointee for Mrs Y’s attendance allowance.
34. In the same week the financial assessment team received further information from the CAB that Mr B was not receiving the state pension. It also received new information from the DWP that showed Mr B had received personal independence payment since June 2022. This is information it had not previously received from Mr B. The financial assessment team therefore completed a review of the financial assessment for Mrs Y. It decided it would disregard the property while Mr B lived there as he was a qualifying relative, as outlined at Paragraph 10.
35. In December 2022 the Council’s deputyship team accepted the referral for Mrs Y. It said it would start the process of applying for a corporate appointeeship with the DWP. It also applied for deputyship for Mrs Y. The application for deputyship has not yet been resolved.

Findings

36. I have separated my findings into the following points of complaint:
• Application for deputyship
• Rescinding appointeeship
• Pursuing care fees

Application for deputyship

37. Mr B says he felt under pressure from the Council to apply for deputyship. He says he could not afford the fee and the application process caused a significant amount of distress.
38. Mrs Y lacked capacity and had not made a lasting power of attorney. It was therefore clear from the outset that someone needed to apply for deputyship, to act on her behalf in managing her financial affairs and get access to her bank accounts and income. It is common for this person to be a relative and the Council will normally only apply for deputyship itself where there is not another suitable option.
39. The Council sent Mr B information about deputyship. Mr B initially was unsure but then said he would be comfortable making the application. It may have been helpful early on to make it clear to Mr B that he did not need to apply for deputyship if he did not feel able and that the Council could do this instead. However, the Council sent comprehensive information to Mr B and he took advice from the CAB. I also note that before the application concluded, following concerns raised by Mr B about his health, a social worker did make it clear that he did not have to be a deputy if he did not feel he was able.
40. I cannot find, based on the available evidence, that the Council placed pressure on Mr B to make or continue with the application. The fees for the application were funded by a charity and Mr B was able to withdraw the application when he decided he could not continue with this.

Rescinding appointeeship

41. I find fault in how the Council managed its concerns about Mr B’s management of the appointeeship.
42. The Council was aware from the outset that Mr B could not access Mrs Y’s bank accounts, until he was approved as a deputy by the COP. It was also aware that Mr B had autism and struggled with his mental health.
43. I can see from the records that the Council’s social care team kept in regular contact with Mr B. Social workers were generally polite, accommodating and took steps to help Mr B’s situation, for instance by asking the Home to suspend sending invoices to Mr B. However, I cannot see evidence the Council made clear any expectations on how Mr B should manage the appointeeship funds.
44. After Mr B started to receive the attendance allowance in November 2021, a social worker suggested that Mr B should use this money towards Mrs Y’s personal allowance with the Home. That allowance was for things like transport, toiletries, clothes and other small items. Mr B says he spent the attendance allowance on small items for Mrs Y, like toiletries, clothes and food, only did not keep receipts.
45. The attendance allowance comes from the DWP. There is nothing on the DWP’s web page for appointeeship, or in guidance such as the Age UK factsheet 2, that says appointees must keep receipts.
46. Guidance for lasting power of attorney and deputyship is clear that attorneys and deputies should keep records of all transactions. Beyond this, it is always good practice for a person to keep records of how they spend another person’s income on their behalf. Therefore, I understand why the Council expected Mr B to keep receipts of purchases. However, I can also understand that, in the absence of guidance or instructions from the DWP to do so, Mr B might not have thought to keep receipts for smaller items. The first time the Council told Mr B he needed to do so was during the visit in June 2022, at which time it was clear the Council was suggesting Mr B had misused the attendance allowance.
47. It was for the Council to decide whether it had enough concerns to raise this with the DWP. However, I have not seen any indication that it took further steps to investigate whether there was any evidence of Mr B misusing the attendance allowance, such as asking the Home whether Mr B was purchasing items for Mrs Y, before it raised concerns with the DWP.
48. I also note the financial assessment team’s main concern was that Mr B was not paying towards the care fees, so the debt was escalating. However, no one told Mr B that he should be paying any of the attendance allowance towards the care fees. Even if he had, it would mean there was no money for a personal allowance for Mrs Y and would barely have scratched the surface of the care fees. The debt was always going to accrue until the deputyship situation was resolved, which was largely out of Mr B’s control.
49. The financial assessment team wrote a stern letter to Mr B in September 2022 that alleged he had received £16,000, including from Mrs Y’s state pension, and not paid a penny to the Council. However, the social worker had already asked Mr B about this, three months earlier, and he had provided evidence that it was paid into Mrs Y’s bank account. Therefore, the Council already had this information and should not have sent this letter to Mr B. The letter caused distress to Mr B and I cannot see any further correspondence in which the Council apologised for its mistake.
50. I also note the Council recorded that Mr B could, and possibly should have asked the DWP to pay the state pension to him as appointee, and use it to pay the care fees. However, I have not seen any evidence the Council suggested that to Mr B and, even if it did, there was no obligation on him to do this. So this should not have been a factor in questioning whether Mr B had properly managed the appointeeship.
51. The Council says it has now applied a disregard to Mrs Y’s property but again I cannot see any correspondence that explained this decision to Mr B. Mr B says he has not received any further information from the Council.
52. I cannot find that Mr B has suffered financial loss, as he has not paid the care fees from his own money and the debt to the care home for personal items should be paid from Mrs Y’s funds, once the Council has secured deputyship. I also recognise the Council has now decided it is in the best interests for Mrs Y for it to take over as deputy and appointee for her financial affairs. I will not ask the Council to revisit this decision. However, I find the overall way in which the Council managed its concerns about the appointeeship caused distress to Mr B and recommended it apologise, and pay Mr B £150 to recognise the distress caused.

Pursuing care fees

53. I do not find fault in the Council sending invoices for the care fees.
54. It might have been sympathetic of the Council not to continuously send invoices that showed a spiralling debt, when there was nothing Mr B could do about it until the deputyship situation was resolved. The Council was aware that Mr B was struggling with this. However, social workers did make a request to supress the invoices and the financial assessment team gave clear reasons for why it would not do so. That was the Council’s decision to make and it had good reasons to make this decision, so I cannot question it. It was entitled to send the invoices as normal, and it did agree to put the invoices in Mrs Y’s name, rather than Mr B, and explained that he did not need to pay the invoices until granted deputyship.

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Agreed action

55. The Council has agreed, within one month of this decision, to:
• Apologise to Mr B for the fault in how it handled its concerns about Mr B’s management of the appointeeship
• Pay Mr B £150 to recognise the distress caused
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. I found the Council was at fault in how it addressed its concerns about the way Mr B managed his appointeeship for Mrs Y. It has agreed to take action to remedy the distress caused to Mr B.

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Investigator's decision on behalf of the Ombudsman