Summary: Mrs X complained that the Council failed to undertake a proper financial assessment of her husband’s assets and as a result of the ensuing distress she had to take long-term sick leave. The evidence available shows the Council considered the relevant information proportionately, although there was an initial fault in the safeguarding enquiry which was remedied by an apology.

The complaint

1. Mrs X (the complainant) says the Council did not carry out a proper assessment of her husband’s finances when he became a service user, but made incorrect assumptions about their finances as a couple and unfair allegations about deprivation of assets. She also says officers visited her husband unaccompanied despite his vulnerability. She says the Council accused her of financial abuse and as a result she had to take sick leave and ultimately leave her job with the Council.

Back to top

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)

Back to top

How I considered this complaint

4. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I spoke to Mrs X and to officers of the Council.
5. Mrs X and the Council had an opportunity to comment on my draft decision.

Back to top

What I found

Relevant law and guidance - charging

6. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
7. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Relevant law and guidance – deprivation of capital

8. When undertaking or reviewing a financial assessment a local authority may identify circumstances that suggest that a person may have deliberately deprived themselves of assets in order to reduce the level of the contribution towards the cost of their care.  Deprivation of assets means where a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care. This means that they must have known that they needed care and support and have reduced their assets in order to reduce the contribution they are asked to make towards the cost of that care and support.
9. The Care and Support Statutory Guidance says, in relation to deprivation,

“The local authority will need to determine whether deliberate deprivation of income has occurred. In doing so it should consider:

(a) was it the person’s income?

(b) what was the purpose of the disposal of the income?

(c) the timing of the disposal of the income (at the point the income was disposed of could the person have a reasonable expectation of the need for care and support?)”

10. We published guidance for practitioners on Deprivation of Capital in August 2022. We said, “We expect councils to make enquiries including obtaining a version of events from the user of services or their representative before making decisions on deprivation of capital. The council may also reasonably ask that person to provide supporting evidence for their account.”

Relevant law and guidance – the mental capacity act and safeguarding

11. 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.
12. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity.
13. 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?

14. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014).

What happened

15. Mr X has dementia and Parkinson’s disease. He began to receive a package of care from the Council in April 2023. Mrs X, who worked as a financial assessment officer for the Council and has (joint) power of attorney to act as her husband’s financial representative, requested a financial assessment for him. She wrote “(Mr X) lives separately to me so for purposes of the FA he is classed as single. We have a joint mortgage on the property I reside in, so I expect half of the mortgage can be included in the FA (as his responsibility to pay this)”.
16. Mrs X says she expected it would take about 3 weeks from the date she submitted the relevant supporting evidence in May 2023. Mrs X says she requested a full financial assessment, although she knew her husband would be a full charge payer on account of his pension, so they would know the maximum contribution he would have to pay going forward as his health declined and needs increased.
17. On 16 May an officer wrote to Mrs X with some queries about the finances. She asked about the two properties. She set out that “(Property A): (Mr X) lives there, you’re the sole owner, there’s no mortgage. (Property B) You live there, you own it jointly, there’s a mortgage that you each contribute to as it’s ‘his responsibility to pay this’. Please elaborate about it being (his) responsibility.” She said the accounts showed that Mr X had paid towards property A as well as property B and asked for clarity as well as the written agreements in place.
18. Mrs X responded. She said it was complex but this was how they had always handled their finances both before and since they split up. She set out the way in which the accounts were shared and payments made. She said the mortgage for property B was in joint names, so it was Mr X’s responsibility to pay half. She said there was no rental agreement in place for property A and described it as “quite informal”. She said she informed her husband of “large spends”.

The safeguarding enquiry

19. The Council records show there were concerns among officers about the way in which Mr X’s money was being handled and it was agreed to make further enquiries in respect of a possible deprivation of assets. In particular they were concerned that money had been used to buy a separate property for Mr X after his diagnosis of dementia, when he already had a reasonable expectation of requiring support. A safeguarding enquiry was commenced and a visit to Mr X arranged to consider his capacity around financial decisions. The planning meeting notes indicate that a representative would be required to support Mr X.
20. The Council informed Mrs X that some allegations against her were being investigated, including possible financial abuse.
21. As part of the enquiry, two social workers visited Mr X visited Mr X later in May to ascertain whether a capacity assessment was required. He was not given forewarning to arrange a representative to be present. He became upset and asked them to leave.
22. A further visit was arranged for June. The notes of the visit record its purpose was to explore “concerns over possible financial exploitation”. Mr X said he was happy with the way Mrs X was managing the finances. He said he was not aware of the money he had or the expenditure and income: he said at one time he would have known this but now he did not. He said he no longer had the capacity to manage his own finances which is why Mrs X was supporting him.
23. Following the visit it was agreed the allegations in connection with potential financial abuse were unsubstantiated, although the Council asked the Office of the Pubic Guardian (OPG) to comment on Mrs X’s role as power of attorney for Mr X in relation to the property purchase. A social worker contacted Mrs X to let her know the allegation that she had depleted Mr X’s funds without his knowledge was not substantiated.
24. Mrs X took sickness absence from work because of the stress she was experiencing. She asked the Council to explain to her why it thought the matters it was investigating met the threshold for a safeguarding enquiry. A meeting was arranged with Mrs X to discuss some other allegations (which did not relate to Mr X’s financial assessment). Officers at the meeting advised Mrs X to submit a formal complaint, external to her employment situation, if she remained concerned about the financial assessment and the safeguarding enquiry. They assured her that the concerns which had been raised met the threshold for a safeguarding investigation.

The financial assessment

25. The Council’s files show the financial assessment officers continued to consider the assessment of Mr X’s finances. Officers wrote to Mrs X to update her that the process was ongoing. In October Mrs X wrote to the Council to say she was no longer prepared to consider paying backdated care fees in the absence of a full assessment as requested. The OPG also wrote to the safeguarding social worker in October to say that Mr X had had mental capacity to make his own decision at the time the property A was purchased. The Council formally closed the safeguarding enquiry.
26. In February 2024 the financial assessment manager wrote to Mrs X. She apologised for the significant delay. She said “We will soon raise an invoice for the full cost of care delivered since 15 April 2023 and we will send subsequent invoices every 4 or 5 weeks. The planned care has always been 5.25 hours a week, our hourly rate is £21.80, and so the planned weekly charge is £114.45. I know that you have been expecting this.”
27. The manager went on to say this did not mean the assessment process was concluded, as there were remaining matters to be resolved, but she pointed out that Mr X was a full cost payer and therefore it was open to the Council to invoice him as such. She asked whether Mr X had contributed to the purchase of property A: she said Mr X had indicated he had contributed to the purchase and they had a duty to discover whether his funds had been depleted by this purchase in order to reduce the cost of care.
28. The manager asked for copies of Mr X’s bank accounts for January 2020 to January 2021. She said she was not asking for Mrs X’s personal accounts except where they were held jointly with Mr X. Finally she said, “In addition we would like you to explain the following:

1) how the proposal/ plan was formulated in so far as (Mr X) would move out of the matrimonial home (Property B), especially as medical opinion is likely to suggest that staying in familiar surroundings would generally be a positive decision for someone with dementia

2) what, if any, are the plans or intentions in respect of (Property B).”

29. Mrs X says she also then received an invoice for the backdated charges.

The complaint

30. In April 2024 Mrs X submitted a formal complaint to the Council. She complained about the lengthy delay in assessing Mr X’ s finances in relation to charging for his care. She said after the long delay she had received an unsuitable and insulting letter which was not a full outcome letter but asked questions which, she said, were none of the Council’s business. She said the receipt of the letter had caused her considerable additional stress. She said when she queried the letter and asked senior officers to acknowledge its unsuitability, she received a letter from the section’s strategic manager explaining that the questions posed were reasonable and justified.
31. Initially the complaint was allocated to the strategic manager to respond to but was then redirected to an assistant director, as the strategic manager was included in the compliant. Mrs X asked for a response to the complaint in May. The assistant director responded. He said the tone of the February letter was not intended to be “accusatory and demanding” as she had suggested. He said the Council was willing to complete the financial assessment but was not in a position to do so until the questions it had asked, which he said were justified and proportionate, were answered.
32. Mrs X complained again. She asked for the complaint to be escalated to Stage 2 of the procedure. She said the questions asked about the property purchase were personal, and were based on conjecture.
33. The Council responded in June. It apologised for the delay in issuing the Stage 1 response. It said it would not escalate the complaint to Stage 2 as that would not result in a different outcome. It said “we are willing and ready to complete the full financial assessment as you have requested, however for us to do this we require the further information to be provided. If this information is not provided the process cannot be completed.”
34. After receiving a response to a subject access request, Mrs X also complained about the way in which the social care team had approached the safeguarding enquiry and the capacity assessment. She asked for clarity over whether or not a mental capacity assessment had been undertaken. She asked why there had been no proper notification to Mr X of the first visit to enable him to have a representative with him. She complained that the Council had reported her to the OPG.
35. A strategic manager (who was not involved in the financial assessment matters) responded in July. She said she partly upheld the complaint about the visit. She said, “The local authority investigating concerns raised under the Adult Safeguarding process and reason for the home visit was appropriate in order to ascertain (Mr X)’s understanding and views with regards to the management of his finances.” She said however that as it was recorded on his case records that Mr X would require support on visits, this should have been offered to him to arrange at a mutually convenient date. She apologised it had not been done, and noted the social worker had already written to him to apologise. She said team leaders had now been reminded to share with social workers that it was good practice to let service users know they would be visiting and give them an opportunity to arrange a suitable companion. She said there was no evidence that the visit had overstepped professional boundaries, as Mrs X suggested.
36. The manager also addressed Mrs X’s concerns about the mental capacity assessments. She explained the two-part test required by the Act:

“1. Is there an impairment of or disturbance in the functioning of a person’s brain or mind?

2. Is the impairment or disturbance sufficient that the person lacks capacity to make a particular decision? This includes understanding information about a decision to be made retain this information, weigh this up and communicate this decision”.

She said the diagnosis of dementia answered the first part of the test. She said the outcome of the second part was that Mr X “did have mental capacity in understanding of financial arrangements and confirmed awareness to the ownership of the home where he is living. Also, that he was happy with the joint arrangement for paying ongoing bills in both the property he lives and the one you live which you retain joint property ownership”. She said Mr X’s wishes and views in respect of the safeguarding enquiry were respected. She did not uphold the complaint.

37. Finally, the manager addressed the report to the OPG. She said this had been “raised and submitted, following advice and direction from our Legal Team before we fully closed the Safeguarding enquiry. This was both to inform the OPG that a concern had been raised regarding a deputy and whether any financial decisions had been in the best interest of the person concerned “. She said the referral to the OPG “enabled the completion of all final checks being completed” before the safeguarding enquiry was closed. She did not uphold the complaint.

The financial assessment

38. In September the manager who was considering the financial assessment asked for further advice from the Head of Business Support. She said Mrs X had under protest sent part but not all of the information requested previously. She said Mrs X had written, “after contacting (Mr X)'s banks for 2020 bank information SCC has wrongly demanded, I provide this information, but not in its entirety. We find it a huge violation to disrespect/ invade our personal business, when previous evidence submitted is entirely factual and sufficient for purpose”. She said the other questions had not been answered at all: in her view the information provided still remained insufficient to complete the assessment.
39. Mrs X complained to the Ombudsman about the financial assessment. She then raised the further complaint about the safeguarding enquiry and commented on the inaccuracy of the safeguarding visit notes.
40. The Council says its concerns focussed on the purchase of the second property at a time when Mr X had already been diagnosed with dementia and Parkinson’s’ disease and therefore had a “reasonable expectation of the need for care and support”. It says it has never had the explanation of why the property was purchased at that time. It confirms that the questions it posed were questions it would have asked of any service user and says it was very clear in correspondence that it was not requesting details of Mrs X's finances. It says it put the outstanding debt on hold while the complaint was being investigated but has no reason to waive the charges.
41. Mrs X says the way the Council has acted has severely affected her health. She has not returned to work since July 2023 because of the stress and anxiety. She says the backdated fees should be written off as they accrued through the Council’s own fault.

Analysis

42. The Council had a duty to investigate where it suspected there was financial abuse. The responses from Mrs X to the financial assessment raised concerns with officers as to Mr X’s knowledge and consent to the way his money was being managed. The Council was entitled to proceed to a safeguarding enquiry.
43. The planning notes for the visit to Mr X in May 2023 clearly said he would require the presence of a representative but he was not given the opportunity to arrange that before the visit. That was an error for which the Council apologised, and which it has taken action to prevent happening again.
44. The safeguarding allegations were deemed to be unsubstantiated and the enquiry was closed after confirmation from the OPG that it would not proceed with an enquiry. I recognise Mrs X’s view was that the involvement of the OPG was unnecessary and malicious, but I have seen no evidence that was the case.
45. The Council was unable to reach a completed financial assessment based on the evidence provided by Mrs X. There was no reason why it should not make further enquiries about the purchase of the second property and the intentions behind that purchase. The statutory guidance is clear that it could do so, and the Ombudsman’s published guidance confirms the Council may also reasonably ask that person to provide supporting evidence for their account.
46. Mrs X says the Council should write off the backdated charges because it was the Council’s own fault they accrued. However, it is clear that Mrs X was well aware Mr X was a full cost payer. I see no reason for the Council to waive the charges for care which has been provided.

Back to top

Final Decision

47. I have completed this investigation. Any injustice which was caused by the fault in undertaking the first safeguarding visit was remedied by the Council’s apology and action taken to prevent a recurrence. I do not find any other fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman