Summary: Mr X complained about the way the Council dealt with his aunt, Miss Y’s finances. We found fault in the Council’s failure to send a deputyship referral. We also found fault with the Council’s communication about financial information and record keeping. This caused Miss Y’s family frustration and uncertainty. The Council will apologise for this and make service improvements.

The complaint

1. Mr X complains on behalf of his aunt, Miss Y, about the way the Council dealt with her finances. He complains the Council:

• delayed applying to manage Miss Y’s finances; and
• continued paying rent on Miss Y’s council flat when she moved into a care home, despite there being no possibility of her returning.

2. Mr X says this matter has caused him significant frustration and inconvenience.

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The Ombudsman’s role and powers

3. 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)
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 have considered the information Mr X and the Council provided.
6. Mr X and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Legislation and guidance

Best interests decision making

7. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.

Court of protection

8. The court of protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
9. The court of protection can make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions. It can also appoint deputies to make decisions for people lacking capacity to make those decisions.

Lasting Power of Attorney

10. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. 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.

Care and support statutory guidance (CSSG) – information and advice

11. The CSSG provides guidance on section 4 of the Care Act 2014 and covers the duty placed on councils to establish and maintain information and advice services relating to care and support for all people in its area. This includes a council’s role in providing financial information and advice.
12. The guidance says a council must ensure that it provides information and advice on the court of protection, power of attorney and becoming a deputy.
13. The guidance covers people who lack capacity to consent to a financial assessment and do not have people with authority to be involved in their affairs and may require the appointment of a property and affairs deputyship. Family members can apply for this to the court of protection, or a council can apply if there is no family involved in the care of the person.

Principles of Good Administrative Practice

14. The Ombudsman published the Principles of Good Administrative Practice in 2018. This sets out the standards we expect from bodies in jurisdiction.
15. The guidance stressed the importance of keeping proper and appropriate records.

What happened?

16. In February 2022, Miss Y was discharged from hospital into a care home.
17. The Council completed a care needs assessment with Miss Y and discussed this with Ms Z, who the Council said was Miss Y’s next of kin. The Council and Ms Z decided that Miss Y needed long term care to meet her needs. The Council said that Miss Y did not have capacity to decide about her care and so it made this decision in her best interests.
18. In March, during a telephone call between Ms Z and the Council, Ms Z said there was no lasting power of attorney in place for Miss Y’s finances. Ms Z also said she did not want to manage Miss Y’s finances and would like the Council to do this instead.
19. The Council told Ms Z it would make a referral to its internal client affairs team who dealt with applications to the court of protection for deputyship.
20. As the application for deputyship needed a mental capacity assessment to be completed, the Council visited Miss Y in May to do this. Following this assessment, the Council confirmed that Miss Y did not have the capacity to decide on her finances.
21. Shortly after this, the Council called Ms Z. Both the Council and Ms Z agreed it would be in Miss Y’s best interests if the Council applied to the court of protection to manage Miss Y’s finances.
22. At the end of May, council records show that a manager recorded the Council had made a referral for deputyship. This record also said, the Council would pay for Miss Y’s care home fees until the court appointed a deputy.
23. The Council completed two financial assessments for Miss Y in June 2022. These were for the years of 2021/22 and 2022/23. I have viewed these assessments and the Council did not complete the section “home and other expenditure” which was relevant to whether a person was paying rent.
24. In addition to this, in the 2022/23 financial assessment, the Council recorded that Miss Y’s financial manager was a named person from the Council’s client affairs team.
25. In June, the Council completed a delayed six-week review of Miss Y’s residency at the care home. In review documents, the Council again recorded that it had made a referral for deputyship.
26. Council records from August, show that a manager asked the allocated social worker to get an update from the client affairs team on Miss Y’s deputyship referral.
27. In the following month of September, the Council completed a care review for Miss Y. In preparation for this review, the Council contacted Ms A, a friend of Miss Y’s. The Council said that Ms A was Miss Y’s deprivation of liberty representative. However, Mr X says Ms A was not a formal representative of Miss Y. The Council told Ms A that it had made a referral to its client affairs team for deputyship. In response to this, Ms A told the Council she would continue to support Miss Y to manage her finances while they waited for the court to appoint a deputy.
28. The Council also recorded that Ms A said that now Miss Y’s residency at the care home was permanent, she would support Miss Y to end her tenancy at her council flat. However, Mr X says that Ms A denied telling the Council this.
29. Miss Y died in January 2023.
30. Shortly after this, Mr X completed a notice to quit form for Miss Y’s council flat and gave this, and the flat keys, to the Council.
31. In mid-November 2023, Mr X complained to the Council. He said:

• when Miss Y moved into the care home in March 2022, the Council knew she would not be returning to her council flat;
• the Council told Ms Z it would apply for deputyship of Miss Y’s finances straight away, however the Council only did this in October 2022;
• Miss Y’s neighbour told the Council multiple times that Miss Y’s flat was empty and that she had the keys for it;
• when Miss Y died, Mr X realised the Council had been collecting rent from Miss Y until her death, which she had paid in addition to care fees; and
• Mr X had contacted many council departments, none of which had been able to help him with this situation.

32. The Council responded to Mr X’s complaint in December. It said:

• the Council received the keys and notice to quit in early January 2023;
• it needed a completed notice to quit and keys to the property to be able to end a tenancy;
• the Council did not receive any formal notification to end the tenancy when Miss Y went to live in the care home;
• Miss Y’s tenancy of her council flat ended on 19 February 2023, which took into account the required four-week notice period;
• following Mr X’s complaint, the Council said it had decided to accept the notice period from the date he returned the keys instead. It had therefore amended the tenancy end date to early January; and
• any credit due would be sent directly to Miss Y’s beneficiaries.

33. In response to my enquiries, the Council acknowledged fault in relation to the referral to the client affairs team. It said it mistakenly thought it had sent the referral and had assumed the client affairs team would follow up all matters related to Miss Y’s finances.
34. The Council confirmed that due to this mistake, it failed to ever send the referral to the client affairs team and so no application was made to the court of protection. Therefore, Council records noted in May, June, August and September (which mentioned the deputyship referral) all contained inaccurate information.
35. The Council also told me that money management by the Council is a last resort service, available only for people who lack capacity and do not have any relatives to manage their finances. The Council said this might not have been made clear to Ms Z at the point she told the Council she did not want to manage Miss Y’s financial affairs.
36. The Council also said, it would be usual, where family members are involved with residents moving into care homes, for them to deal with administrative matters, such as the end of a tenancy. The Council’s view is that it was a reasonable expectation for Miss Y’s next of kin to have advised housing that she had moved into a care home.
37. The Council told me that even if it had made the application to the court of protection, there are severe backlogs in the courts and so it is unlikely the Council would have had the legal right to end Miss Y’s tenancy anyway.
38. Additionally, the Council said that Ms Z was informally managing Miss Y’s financial affairs until formal deputyship was in place. This contradicts Council records which note that Ms Z did not want to manage finances and that Ms A was managing her finances until the court appointed a deputy.
39. In reply to my enquiries about Mr X’s complaint that Miss Y’s neighbour had tried to return the council flat keys on several occasions, the Council said it had no record to suggest this was the case.
40. The Council said it had already identified some learning from Mr X’s complaint. This included:

• there is a need to restate guidance to social workers on client’s financial affairs so they can correctly advise family members that this is only a service for people with nobody to manage their finances; and
• improvement is needed on the communication between adult social care and housing.

41. The Council also said it will ensure a debrief takes place on this case, so that learning can be shared with the relevant departments.

Analysis

Application to manage Miss Y’s finances

42. The Council has already accepted fault for failing to send the referral to the client affairs team, which meant that no application was made to the court of protection for deputyship. The Council’s failure to do this, despite saying it had on several occasions, is fault. This caused Miss Y’s family frustration and uncertainty and I shall recommend a remedy for this.
43. A council also has a responsibility to keep accurate records. The Council recorded on several occasions that it had made this referral, when it had not. This inaccuracy in record keeping is fault which caused uncertainty to Miss Y’s family.
44. The Council acknowledge that it may not have told the next of kin (Ms Z) about its money management service which is a last resort for people who lack capacity and do not have relatives to manage their finances. Ms Z had specifically told the Council she did not want to manage finances and that there was no lasting power of attorney in place for Miss Y’s finances so the Council should have discussed this service with Ms Z.
45. Guidance says that councils must provide accurate and accessible information about finances. The Council did not do this and its failings in poor communication was fault. They meant that Miss Y’s family were not adequately informed as they should have been. This, in turn caused them uncertainty and frustration. I have made a recommendation to address this injustice below.
46. As the Council has already said it will restate the guidance to social workers, I will not recommend any further service improvements here.

Miss Y’s rent payments to the Council

47. From the information received as part of my enquiries, it was not the Council that continued to pay rent on Miss Y’s council flat when she moved into a care home, and instead it was Miss Y herself that paid this rent. The Council therefore had not been involved in dealing with Miss Y’s finances.
48. When completing Miss Y’s financial assessments, the Council should have considered the fact that Miss Y was still paying rent on her council flat, particularly as this was one of the questions in the two financial assessments it completed. However, the Council left these sections blank in both assessments and records suggest that the Council failed to consider that Miss Y still had a tenancy that she was paying for, until this complaint was made.
49. In response to my enquiries, the Council said it acknowledged it needed to improve communication between adult social care and housing.
50. The omission in the financial assessments and the Council’s acknowledgement that communication did not meet the expected standards is fault. This would have caused avoidable frustration and uncertainty to Miss Y’s family about the Council’s consideration of Miss Y still having a tenancy and permanently moving to a care home.
51. However, the Council also explained its view that it would have been reasonable for Miss Y’s family to have notified housing that it wished to end her tenancy. Council records from September 2022 show that Ms A, a family friend, told the Council she would support Miss Y to end her tenancy. Ms A also told the Council she was informally managing Miss Y’s financial affairs until the deputyship was in place.
52. Mr X’s complaint about this matter is that Ms A tried to hand back the keys to Miss Y’s council flat on several occasions, but the Council ignored her requests. In response to my enquiries about this matter, the Council said it has no record of Ms A attempting to return the keys nor any request to end the tenancy. I therefore do not find fault here because there is no evidence that the Council ignored requests. If there was the view that the Council had ignored any requests, then the action of submitting a complaint and formally ending the tenancy could have been taken sooner and this would then have led to the Council addressing matters.
53. I have considered whether the Council’s failure to apply to the court of protection for deputyship resulted in Miss Y paying rent for her council flat for longer than she should have done.
54. If the Council had made the application to the court of protection, as it said it had, it is unknown what the court outcome would have been. Also, there is delay in the work of the court so it is unknown whether the court would have considered Miss Y’s case before her death. The Council’s fault of not applying to the court of protection has caused uncertainty to Miss Y’s family as they cannot be sure whether this would have led to her tenancy ending sooner. However, as explained above, Miss Y’s family also had the options available to formally end the tenancy sooner and to raise a complaint to the Council about any concerns.

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Agreed action

55. Within a month of the date of my final decision, the Council will:

• apologise to Mr X and Miss Y’s family for the frustration and uncertainty caused by failing to complete a relevant section of the financial assessments, failing to send the deputyship referral and court application, poor communication about financial information and poor record keeping.

56. Within three months of my final decision, the Council will:

• develop an action plan to improve communication between its adult social care and housing departments. This should include an approach for dealing with issues about paying rent to the Council and considering ending of tenancy when somebody is no longer able to live in the property.

57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman