Summary: The Council’s social care and finance teams did not communicate properly after Ms X’s father’s death and that caused distress and anxiety among her family which the Council will recognise with a payment. However, it was not the fault of the Council that Mr X did not take account of the information given to him about becoming an appointee for his sister’s benefits. The Council is now taking appropriate action to resolve the matter of Ms X’s finances.

The complaint

1. Mr X (as I shall call him) complains that the Council failed to give him appropriate information about responsibilities as an appointee and has not refunded to him the money he spent for his sister’s benefit but has credited it to her instead.

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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 significant injustice, or that could cause injustice to others in the future 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 all the information provided by the Council and by Mr X. Both Mr X and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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.
6. 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.
7. A DWP appointee is someone who is appointed to manage the welfare benefits and money management matters of a person who is unable to do so themselves. This could be because the person has a mental or physical disability, or they are unable to manage their affairs for other reasons. The appointee is responsible for making sure that the person’s welfare benefits are applied for accurately, received in a separate bank account and used for the benefit of the person they are appointed to represent. They are also responsible for managing the person’s finances, paying bills and making decisions about how the person’s money is spent. Once appointed, the appointee has legal responsibilities and must act in the best interests of the person they represent and understand the 5 underpinning principles of the Mental Capacity Act 2005.
8. The PEA is the weekly amount (set at £25.65 in 2022) that people receiving local authority-arranged care and support in a care home (residents) are assumed to need as a minimum for their personal expenses and local authorities must apply this. The PEA is specified in regulations made under section 14(7) of the Care Act 2014 and applies to all people whose care and support in a care home is arranged by a local authority under section 18 or 19 of the Act. It is intended to allow residents to have money for personal use. Based on a financial assessment of their resources, individuals must be left with the full value of their PEA. It is then up to them to determine how they spend it.

What happened

9. Ms X is an adult with a learning disability. Until her father became ill in 2021, she lived at home with him. She then moved into a short-term placement at a residential college. The Council’s records show that invoices for her care were sent to her home address and paid.
10. Ms X’s father died in February 2022. There was an online meeting attended by Ms X’s family, college representatives and a social worker. The social worker explained that funding of Ms X’s placement at the college would continue until 12 April. The Council continued to send invoices to Ms X’s home address for payment of her contribution towards the cost of her care.
11. The social worker emailed Ms X’s family in March to discuss an assessment of Ms X’s needs. The Council’s records show the assessment visit took place in May. The outcome of the assessment was that Ms X needed a long-term residential placement at the college where she had settled.
12. Mr X says the college asked him for money for Ms X’s personal expenses – clothes, trips out, chiropody and so on. He says he was spending about £80 a week to cover these requests. He says in September he and his brother were invited to a meeting at the college - they are not sure who arranged the meeting – and were asked to become appointees for Ms X so that someone could administer her benefits. He says he agreed to become appointee as he understood this was solely for collecting benefits for Ms X.
13. The Council’s records show the social worker spoke to another family member who told the social worker Mr X was applying for appointeeship. The social worker emailed her after their conversation, “spoken with (family member) today and have advised that I will be closing the case to myself as long-term funding has been agreed and there are no concerns about the placement, following review on 9 May 2022. I can confirm that the funding extends to the use of the hydro-pool also. I believe (Mr X) is opening a bank account for (Ms X) and will be acting as Appointee; however, I have attached a leaflet that may be of some support for you in relation to the completion of the PIP forms etc. In the closure letter there will be a list of contact details for Adult Social Care should you require input prior to the annual review”.
14. Mr X became appointee for Ms X from 1 December 2022.
15. In December 2022 the Council’s finance section confirmed with the social care team that Mr X was the appointee. By this time the debt for unpaid contributions for Ms X was £5,595 as no invoices had been paid since January 2022.
16. In February 2023 Mr X withdrew from being Ms X’s appointee. He wrote to the Council explaining that he would do so as he was now receiving the bills for Ms X’s contribution towards the cost of her care. He said he had not received any information about his responsibilities as an appointee and did not want the stress of receiving bills.

The complaint

17. Mr X then complained to the Council. He said he had not been told he would receive the bills to pay out of Ms X’s benefits as her appointee. He said he felt the Council had a duty to advise him of his responsibilities and that he would have to pay the contributions. He said he had ‘kept’ Ms X in respect of her self-care and leisure activities since the death of their father. He asked for reimbursement for his costs.
18. A manager in the financial assessment team responded to the complaint in April. He said there had not been any contact between the social care team and the finance team after Ms X’s father died and so invoices continued to be sent to the same address. The first invoice to be sent to the correct address was on 1 February 2023. He said the financial assessments team could have considered the costs of items such as trips out for Ms X if the matter had been referred to them at the right time. He explained the information leaflet from the Department of Work and Pensions (DWP) described the responsibilities of an appointee however.
19. The manager referred to Mr X’s point that he had spent about £80 a week of his own money on his sister since her placement at the college. He said “I can see that trips were mentioned as part of her activities and it is reasonable for an extra allowance to be made retrospectively to her financial assessment from when you effectively took over her financial affairs. This means that I have reduced her contribution by £80 a week from 17 February 2022.
20. The manager also said that he had stopped Ms X’s contributions completely from 1 February as payments were suspended until someone could act on Ms X’s behalf. He said once a new appointee was found the Council would apply discretion about how far back the contribution should apply. He said he would arrange for a credit note to be issued to Ms X as she had no-one acting on her behalf.
21. Mr X complained again. He repeated he had never been given information about his responsibilities as an appointee. He said any credit note should be sent to him not to Ms X, as he had paid the money out of his own resources not out of the benefits for Ms X.
22. The Council responded again in May. It said, “The council’s obligation is to refund any credit to the account of the person being charged, not that of a third party. The council will therefore make the refund to (Ms X’s) account. The council considers that any repayment of this to you would be between a new representative or appointee and you. That presumably can now only occur when one is found.”
23. Mr X complained to the Ombudsman. He said he had spent money of his own which he could not afford supporting his sister in the college placement and he felt it was an insult for the Council to agree to refund the money, but then to do so in the form of a credit note to Ms X.
24. The Council says that to become appointee for his sister’s affairs Mr X had to complete the DWP application form which spells out the responsibilities of an appointee. It refers to the application form which as well as listing the roles and responsibilities says, “Any money that you receive on their behalf must be used in their and their dependent’s best interest. For example:

paying their fees for a nursing or care home or carer. This includes the fees for social care services such as residence in a care home or support in their own home;

towards meeting everyday living costs”.

25. The Council accepts that because of poor communication between the social care team and the finance team, Mr X would not have been aware of the contributions Ms X was obliged to make towards the cost of her care as invoices continued to be addressed to her father.
26. In response to Mr X’s statement that he was spending about £80 a week on his sister’s personal expenses, the Council points out the current PEA is £25.65. it points to the section of the DWP appointee application form which requires that the PEA is paid by the appointee every week. It says, “any payment made over and above £25.65 was not a legal requirement on the appointee and therefore we can only conclude that it was made on a voluntary basis.”
27. The Council has also provided information that the amount paid by Mr X to the college for Ms X’s expenses was a total of £615 (£765 minus £150 birthday/Christmas money) between June 2022 and January 2023. Mr X disputes that – he says he always gave his sister gifts, not money. For Christmas and birthdays.
28. The Council says it “cannot make any refund to Mr X for contributions that Ms X was originally considered liable for and the credit note referred to above is in fact an adjustment of the charges on her account.”
29. The Council has applied for appointeeship for Ms X and will reclaim on her behalf the benefits which were suspended. It says any claim for reimbursement to Mr X for payments he made on a voluntary basis can only be considered once the Council as appointee is able to act on Ms X’s behalf.

Analysis

30. It was not the fault of the Council that Mr X did not take account of the information given by the DWP when he applied for appointeeship. That information was available to him and it was his responsibility to consider it before he completed his application.
31. The Council was at fault however for failing to communicate properly between departments after Ms X’s father’s death. Invoices continued to be sent to the wrong address for her contribution towards the cost of her care which became confusing and distressing for Mr X after he became her appointee.
32. The Council has since taken steps to resolve the appointeeship question and to adjust the charges on Ms X’s account. I note its point that the moneys Mr X says he spent on her personal expenses were above and beyond the PEA (which was also clarified in the DWP information). The Council has left it open for Mr X to apply to it for reimbursement of any expenses once it has taken over the appointeeship.

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Agreed action

33. Within one month of my final decision the Council will acknowledge the confusion and distress caused to Ms X’s family by its poor departmental communication and offer £500 to Mr X;
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed this investigation. I find there was some fault on the part of the Council which caused injustice to Mr X: the completion of the recommendation at paragraph 33 will remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman