Summary: We will not investigate this complaint about the Council’s adult social care team failing to support someone to apply for attendance allowance benefit. This is because it is unlikely we will find evidence of fault. We will not add to the Council’s investigation or reach a different outcome.

The complaint

1. Ms E says the Council advised her relative, Ms F, to apply for attendance allowance but gave no practical assistance in doing so. Ms E says Ms F would not have understood and had the capacity to manage this alone. This has caused a financial hardship, and caused stress, time and trouble. Ms E wants the Council to improve future service and pay unpaid attendance allowance to Ms F’s estate by offsetting it from unpaid care fees.

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The Ombudsman’s role and powers

2. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

3. Ms F has died; we have accepted Ms E as a suitable representative.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Ms E says she only recently found out about the issues and that is why she is complaining now. This is a good reason why the complaint was not made sooner and means it is not a late complaint, as it is unclear whether Ms F could have complained at the relevant time.
6. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mental capacity is time and decision specific. For example, not having capacity to decide your care arrangements does not mean you also lack capacity to make any other decisions, such as managing your money. The Mental Capacity Act 2005 and supporting guidance says you must deem someone to have capacity unless there is good reason to think otherwise.
10. Ms E complains that in 2023 the Council deemed Ms F to have capacity to manage her finances. The passage of time now makes it difficult to establish the facts with confidence. It is too late to now complete an assessment of Ms F’s capacity at the relevant time. The Council says its records show Ms F was managing her own finances and during a meeting with a Council officer Ms F opened post, understood it was a bill she needed to pay, and signed a cheque for payment. So, the Council had no reason to suspect Ms F could not manage her money.
11. Ms E wants the Council to pay unpaid attendance allowance. This is not an outcome we could achieve. The Council is not responsible to pay attendance allowance; it is a benefit awarded by the Department for Work and Pensions (DWP). We cannot know with any certainty that had Ms F, or someone on her behalf, applied for the benefit that the DWP would have awarded it.

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Final decision

12. We will not investigate Ms E’s complaint because it is unlikely we will be able to decide the case with any certainty given the passage of time. Based on the information I have seen it is unlikely we will find enough evidence of fault. We will not add to the Council’s investigation or reach a different outcome.

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Investigator's decision on behalf of the Ombudsman