Summary: There were delays and errors in the way the Council handled the accrual of debt for Mrs A’s late mother Mrs X. The Council has apologised to Mrs A and taken some steps to improve services but should go further to recognise the distress she was caused.

The complaint

1. Mrs A (as I shall call her) complains that the Council delayed in assessing Mrs X’s mental capacity and allocating a social worker to her mother for several months; failed to assist her with advice about obtaining Deputyship; did not tell her it had agreed to an accrual of her mother’s debt until the financial position was resolved, and pressured her to pay bills when she was unable to do so causing considerable stress and worry.

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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 provided by Mrs A and by the Council. Both Mrs A and the Council now have the opportunity to comment on this draft statement before I reach 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. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
7. 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.
8. 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.
9. 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. 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.

What happened

10. Mrs X lived in an annex of her daughter’s (Mrs A’s) home. In August 2020 she was diagnosed with dementia. She became ill in 2021 during the Covid-19 pandemic and was admitted to hospital: by the time she was able to be discharged, Mrs A was also ill with Covid and was unable to look after her mother at home again. Mrs X was admitted to a care home, funded for the first 6 weeks (until 7 April) by NHS moneys.
11. The Council allocated a social worker (SWA) to Mrs X at the end of March 2021. The case recording shows he met Mrs A at the care home on 20 April then again on 30 April when he undertook a mental capacity assessment of Mrs X. He arranged to visit again to try and ascertain Mrs X’s wishes about where she wanted to live as she had been unable to answer during the assessment. SWA emailed the care home manager explaining he was trying to resolve the funding issue as he believed Mrs X would be self-funding but Mrs A did not have Power of Attorney to act on her behalf.
12. SWA’s notes show he was advised by the Finance Manager that the Council would not commission a full cost placement except in exceptional circumstances “such as the customer lacking capacity and no one having access to their finances” in which case an accrual of the full debt would have to be agreed by the senior manager. SWA spoke to Mrs A on 9 June and advised her to proceed with obtaining Deputyship. He noted, “(Mrs A) advised that I had said that she needs to get POA. I advised that I said that she needed to contact the Office of Public Guardianship for advice.”
13. On 4 May SWA visited the care home to complete the mental capacity assessment. He noted “Review and MCA carried out. Will type as soon as possible” but there is no record of the completed assessment on the file.
14. SWA was on leave for a short time at the end of June and social worker B (SWB) picked up the case as Mrs A requested an urgent call back, as she understood her mother would be placed on end-of-life care and she did not want her to return to the care home. SWB undertook to find out what the options were while SWA was away from the office. She said one option might be for the Council to accrue the costs of care until the Deputyship (which Mrs A was applying for) was in place. SWB asked the finance manager if the Council could agree an accrual to pay the care home costs until Mrs A had the Deputyship in place.
15. The case recording shows several different social workers were involved over the next few weeks in connection with Mrs X’s possible discharge from hospital. SWB spoke to Mrs A again on 8 July when Mrs A said she was confused about which department was handling her mother’s discharge and reiterated her concerns about the care home.
16. On 15 July the Council received a ‘discharge to assess’ referral from the hospital ward along with a mental capacity assessment for Mrs X. A senior social worker telephoned Mrs A to ask about her care home preference. The case recording continues, “I then discussed (Mrs X)’s financial situation with (Mrs A) and she said that she has now applied for Deputyship through the Court of Protection (2 weeks ago) and believes her mother has about £50000 in savings. She said she is aware Suffolk are accruing the care homes fees debt and asked how much this now is. I said that I do not have this information.”
17. The senior social worker spoke to Mrs A again on 21 July about the options for a care home placement for Mrs X, near to Mrs A’s home. He noted that the placement team had already sent Mrs X’s details to a home near Mrs A. The case recording notes, “(Mrs A) then asked how she can get the COP13 completed for the application to the Court of Protection [for the Deputyship application]. There is no current ACS mental capacity assessment to support this and the ward one would not suffice. However, I explained to (Mrs A) that a mental capacity assessment will be completed within 4 weeks of her discharge to wherever she goes and, whoever does that, can complete the relevant section within the COP13.”
18. Mrs X was discharged to a care home on 25 July.
19. Mrs A continued to ask about the COP13 form to be completed for the Deputyship application. The case recording shows a number of notes from SWA that he would talk to her about it when they met at the care home. On 23 August Mrs A emailed the senior social worker and said the situation with SWA was “a joke”. She said he had now told her he was not sure he could complete the COP13 form.
20. The senior practitioner responded and said SWA was no longer working for the Council. She apologised for the situation and said until a new social worker was allocated, she would personally complete the assessments. She asked Mrs A to meet her at the home.
21. The senior practitioner completed the assessment on 10 September. She spoke to Mrs A and explained that Mrs X lacked capacity to decide her future care needs and a Best Interest decision was that she should remain in the care home.
22. Mrs A was awarded Deputyship in December 2021.
23. The Council says the senior practitioner ended her involvement in January 2022 and the case was transferred to another team. There is no record Mrs A was told. Mrs A contacted the Council in April 2022 concerned about her mother’s deterioration and that she had not heard from the senior practitioner for months. A duty social worker telephoned Mrs A. Mrs A “spoke about her general dissatisfaction with Adult and Community Services. She said that she considers Social Services very poor. She does not feel that support has been readily available and communication has been poor. She said that she did not know that her mother no longer has an allocated worker.”
24. A new social worker (SWC) was allocated in May 2022. Mrs X died on 18 May.
25. SWC emailed Mrs A to express her condolences at Mrs X’s death. She said she had asked the finance team to contact Mrs A regarding completing the finance paperwork. On 3 June she emailed Mrs A again asking for Mrs X’s National Insurance number. Mrs A emailed back saying she could not answer anything as the solicitor was dealing with the probate, and she was disgusted how the Council was repeatedly contacting her when Mrs X had not even been buried. She said she wanted to make an official complaint about harassment.
26. Following some further correspondence about Mrs X’s finances, Mrs A spoke to the finance manager. She said she had never received any confirmation that the accrual had been agreed. She said when she had asked for confirmation she had been sent a complaint form. The finance manager said she would ask someone to call and discuss the amount with Mrs A.
27. A finance officer spoke to Mrs A on 12 September and said she would raise an invoice. The invoice was sent to Mrs A on 19 October. Mrs A complained it had been received several weeks after their conversation.
28. Mrs A made a formal complaint to the Council.

The complaint

29. The senior finance officer responded to Mrs A’s complaint. She apologized that SWA had not completed the necessary paperwork to assist Mrs A with her application for Deputyship before he left the Council and acknowledged this had hindered her.
30. The senior finance officer said the senior practitioner had then completed the necessary assessments. She said however there had been a long delay (until May 2022) before another social worker was allocated to Mrs X. She apologised for the lack of support Mrs A had received from the Council during that time.
31. The senior finance officer apologised that Mrs A had been contacted about completing more financial assessments around the time of her mother’s death. She said these were unnecessary because the Council had agreed the accrual, but she acknowledged Mrs A had not been told that in writing as she should have been. She also apologised that Mrs A had struggled to contact different officers at the Council about the finances, and that there had been a delay of six weeks in issuing the invoice. She said the poor communication between the teams in Adult Social Care services had been recognised and steps taken to address the problems which had arisen.
32. A senior finance manager also wrote to Mrs A apologising for the poor service. She said the service had been “poor on a number of levels”. She said there had been some unacceptable delays. She agreed it was poor practice to issue invoices without a covering letter but said a new corporate finance system prevented the staff from raising a cover letter at the same time as an invoice. She said “I will go back to the Head of Finance to ask them to look at this again because cases like yours highlight the fact that this is not a satisfactory way of dealing with people, who may often be in difficult and/or emotional circumstances.”
33. Mrs A remained dissatisfied and complained to the Ombudsman. She said the Council’s failure to assist and frequent failures to respond had made a stressful situation considerably worse. She said SWA’s delay in assessing her mother’s capacity at an early stage had meant by the time the assessment was completed Mrs X had lost capacity and she had to apply for Deputyship rather than Power of Attorney. She said the Council had talked about the accrual but never confirmed it in writing and she was being asked to pay invoices she could not pay as she had no access to her mother’s funds. She also complained about the way council officers had harassed her for information – incorrectly as it turned out – just after Mrs X died.
34. The Council says the case recording and records of phone calls confirm that Mrs A was aware of the accrual. It acknowledges it did not write to her to confirm.
35. The senior finance manager who wrote to Mrs A says she has been told it is still not possible to overcome the system problem of invoices being sent out without a covering letter but has indicated to staff they should forewarn people if they know an invoice is to be issued. She says she has also included in staff training “the need for staff to follow up on their commitments”.

Analysis

36. The Council has acknowledged there were multiple delays, failures and errors in the way staff dealt with the problems Mrs A faced in respect of the late Mrs X’s finances.
37. There was a delay in completing a mental capacity assessment promptly. I note Mrs A’s concern that this lost an opportunity to apply for Power of Attorney but the case records suggest Mrs X had already lost capacity when SWA visited her in May 2021. It was fault on his part that he did not complete the written assessment then but the injustice caused by that was principally anxiety and uncertainty for Mrs A, not the lost opportunity to obtain a Power of Attorney.
38. The Council should have confirmed to Mrs A in writing that it had agreed the accrual and thus prevented many months of uncertainty and stress for her.
39. The Council should have informed Mrs A earlier that Mrs X’s allocated social worker had left. It should have ensured a new social worker was allocated much sooner. There was a lack of continuity which was very frustrating for Mrs A.
40. The Council failed to recognise that a financial assessment was not needed. Officers persisted in contacting Mrs A with irrelevant queries at a very difficult time for her when Mrs X had just died.

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Recommended action

41. The Council has taken some steps to put right some of the matters which affected Mrs A.
42. Within one month of my final decision the Council should review its response to the difficulties of issuing invoices without a cover letter, consider alternative solutions, and let me know the result of its considerations.
43. Within one month of my final decision the Council should offer Mrs A £500 in recognition of the uncertainty and anxiety caused to her by the long delays and failures in communication.
44. Within one month of my final decision the Council should offer Mrs A an additional £500 to recognise the sense of frustration and harassment she felt when officers persistently (and needlessly) contacted her at the time of her mother’s death.
45. The Council should provide us with evidence it has complied with the above actions.

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Draft decision

46. Subject to further comments by Mrs A and the Council, I intend to complete this investigation and find that fault on the part of the Council caused injustice to Mrs A.

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Investigator's decision on behalf of the Ombudsman