Summary: Ms Z, on behalf of her mother Ms X, complained about the Council’s action in respect of her finances. There is fault by the Council in failing to start a safeguarding investigation at the appropriate time; delay in progressing a safeguarding investigation and failure to ensure Ms X's needs were met when it suspected her son was financially abusing her. A suitable remedy has been agreed.

The complaint

1. Ms Z, on behalf of her mother Ms X, complains about the Council’s actions in respect of her finances including its failure to give her money, failing to accept her notice to quit resulting in rent arrears and demanding a second mental capacity assessment even though the Office of the Public Guardian completed one in May 2020.
2. Without any money Ms X was forced to use food banks as well as borrowing money for other essential items.

Back to top

What I have investigated

3. My investigation concerns the matters relating to Ms X’s finances and access to her money. I explain at paragraph 49 below the matters I have not investigated.

Back to top

The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with a council’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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

Back to top

What I found

Mental Capacity Act

7. 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.

Mental Capacity Assessment

8. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
9. An assessment of someone’s capacity is specific to the decision to be made at a particular time.

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. 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.
11. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

12. An attorney or donor must register an LPA with the Office of the Public Guardian (OPG) before the attorney can make decisions for the donor.

Safeguarding

13. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. 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)

Council’s procedure note on managing client’s personal expenses

14. For service users in the community, the procedure states a weekly amount of cash is to be paid to the service user for personal use. It says the objective is to apply the least restrictive option to service users and their money management, to make financial decisions in the best interest of the service use and to involve the service user in decisions on how their money is spent.

Key facts

15. Ms X is disabled and lived in a one bedroom housing association property. In May 2017 Ms X’s social worker made a referral to the Council’s client affairs department and it became the appointee in respect of benefits and pensions. This meant payments from the Department for Work and Pensions (DWP) were made into an account held by the Council and it issued Ms X with a payment card to which funds were added every week.
16. The evidence seen as part of this investigation, indicates that there were concerns going back to 2016 about Ms X’s son and him trying to gain control of her money. I have not seen any evidence of any safeguarding enquiry prior to December 2018 despite many references to possible financial abuse by family members.
17. In December 2018, client affairs completed a safeguarding concern form in respect of Ms X. It had been notified that a social fund loan application form had been submitted in respect of Ms X. The Council, as appointee had not submitted this application and it said Ms X did not require a loan as it held approximately £5,000 in her account and so could have released money for any required expenditure. Client affairs also raised concern about Ms X’s son having control of the payment card.
18. The Council looked into the safeguarding concern and decided no further action was required. It said it was unable to determine who had submitted the application and even if one had been made, any money awarded would have been paid into its bank account. It also believed Ms X’s granddaughter had applied for a lasting power of attorney (LPA) and Ms X should be moving shortly to sheltered accommodation.
19. In August 2019, the Council received paperwork stating Ms X’s son has been appointed a Deputy with an LPA. Concerns were raised that the LPA was fraudulent and had been granted without notice given to other family members, which is normally part of the LPA process. The Council advised Ms Z to contact the Office of the Public Guardian and object to the LPA so the matter could be investigated.
20. In September 2019, the DWP telephoned the Council. It said Ms X’s son had been contacting it every day about changing bank details so the money was paid to him instead of to the Council. The DWP said it had not yet received any LPA paperwork. The Council told the DWP there were issues and it should wait to see the LPA before changing bank details.
21. On 23 October 2019, a solicitor acting on behalf of Ms X wrote to the Council setting out concerns regarding her care and money. The solicitor asked what steps were being taken in respect of Ms X’s situation and whether a safeguarding concern had been raised in respect of financial abuse. On 23 October, a safeguarding concern is raised by a council worker. Concerns are raised about possible domestic abuse and financial abuse.
22. The information provided by the Council does not show any further action until 29 January 2020, when social workers visited Ms X to complete a mental capacity assessment. The assessment found Ms X did not have capacity in respect of financial affairs.
23. The Council held a safeguarding strategy meeting on 5 February 2020. It decided a section 42 safeguarding enquiry should take place. Following this a meeting was held on 7 February with Ms X, Ms Z, Ms X’s other daughter and social care officers. Ms X said she did not want client affairs to manage her money because they do not give her any. The Council pointed out that it was putting money on the payment card every week and that it was Ms X’s son who was not giving her money. Ms Z questioned what money was given to Ms X’s son before Christmas and the Council said £600 was put into Ms X’s account on 11 December. The family said that Ms X did not see any of this money. Ms Z argued the Council was holding £8,000 of her mother’s money and it should be transferred so she could use it for her mother. The notes say the Council agreed to speak to client affairs to see if £150 could be transferred if there is no food or money available for Ms X.
24. Later the same day, officers spoke to client affairs. Notes of the telephone conversation say client affairs had already spoken with Ms Z and she did not mention the need to transfer money. Client affairs said the call was about the safeguarding team contacting the DWP to stop money being transferred to Ms X’s son. A further note says the manager of the safeguarding team stated the best course of action was to wait until meeting with Ms X’s solicitor on 18 February and for the solicitor to contact the DWP. The document provided by the Council does not include any notes about what happened on 18 February when the safeguarding team met Ms X’s solicitor.
25. On 24 February the Council emailed the Office of the Public Guardian (OPG). It said it had concerns that the LPA was not acting in Ms X’s best interests and was using her money as his own. It said both the Council and the family had noticed Ms X often does not have any food in her fridge and only noodles and spaghetti hoops in the cupboard. It said Ms X was not aware how her money was being used but thinks the Council is withholding it because this is what her son is telling her. It explained it was managing Ms X’s money prior to 20 January 2020 and that the transactions on the account showed spending out of borough such as golf, takeaways, pub transactions and train fares. It did not believe this was being spent on Ms X.
26. The OPG confirmed it was investigating the issue but that its investigation could take up to two months. On 6 May an officer from the OPG emailed the Council asking if there was any progress on the situation. It also asked whether the Council would be able to fund Ms X’s expenses while its investigation is ongoing. It suggested this could be refunded back to the Council when the LPA situation is resolved.
27. The Council responded the following day saying there was no progress from its standpoint. It asked if the OPG knew what Ms X’s son was doing with his mother’s money each week. The Council said it would not be prepared to make payments for Ms X’s expenses while the weekly state pension and pension credit are being paid to Ms X’s son and he is using the funds himself.
28. The Council asked if the OPG put a timescale for the son to respond to the OPG enquiries. It said it was concerned that in a similar case the OPG investigation took three years and by that time the client had died and all the money had been taken. It said the Council was then contacted by the OPG asking for the death certificate and charging fees for the case and the Council did not have any money.
29. On 14 May the OPG notified the Council that Ms X’s son had been in contact and had been given a deadline to provide a full account. It said if he did not provide an adequate response it would then apply to the Court of Protection to either compel a response or remove him.
30. On 11 June the Council received information that the LPA had been revoked. The Council wrote to Ms Z saying it had contacted the DWP about the pension and was hoping it would start receiving payments soon. It said it had requested a new payment card for Ms X but this would take some time. The Council said Ms Z should let it know what she needed for her mum.
31. On 24 July the Council emailed Ms Z saying it had been notified by the DWP that it would now pay it her mother’s pension and benefits. It asked if it should send her the new payment card for her mother’s expenses. On 24 July the Council emailed the social worker and safeguarding manager to say it had contacted Ms Z last week about the card and access to Ms X’s funds but heard nothing. Client affairs noted this was unusual as Ms Z normally responded. It suggested Ms Z was avoiding contact in order to say the Council was withholding money so she could obtain authority for herself.
32. On 6 August client affairs emailed Ms Z again. It said it had been trying to contact her for a couple of months about access to Ms X’s funds. It said it would write in case there was an issue with email. The Council posted a letter to Ms Z on 12 August about access to funds. It says she did not respond.
33. In September, the Council checked the address for Ms Z as she had still not contacted it. It was confirmed the Council had her correct address. The Council says that it made every effort to contact her until receiving her letter of complaint in October 2020.
34. The Council responded to Ms X’s complaint on 26 November 2020. It explained the DWP started paying her son on 20 January 2020 as he had been appointed LPA. It said it advised Ms Z to contact him for money. It said it did not want to give Ms X any more money on top of what her son was receiving in order to safeguard her money as it was aware she did not have access to the payment card. The Council said it was sorry to hear Ms X had to resort to using foodbanks and if it had known this it would have immediately loaded money onto a card to ensure she had sufficient food.
35. The Council said it had started receiving Ms X’s pension from the DWP on 17 July 2020 and had made the first payment of £100 into her account on 14 October following receipt of her complaint letter on 7 October. It said it would arrange for a social worker to visit to assess her mental capacity in relation to the management of her finances.

Ms X had moved to live with Ms Z in another local authority area, and so it arranged for the mental capacity assessment and for Newham Council to relinquish the appointeeship.

Analysis

36. The Council became the DWP appointee for Ms X in 2017 and the arrangement appears to have worked well at that time. In 2018, a safeguarding concern was raised in respect of Ms X’s son. The Council properly considered the issues and then used its professional judgment to decide a safeguarding enquiry was not required. I have not seen any evidence which would suggest any fault in this.
37. In August 2019, the Council found out an LPA was in place in respect of Ms X. Ms X’s son had been appointed attorney. The Council believed this had been gained fraudulently but there is nothing to suggest the Council took any action at this time other than to advise Ms X’s family to object to it. There is no evidence of any safeguarding action by the Council at that time. It is my view that if the Council believed the LPA had been gained fraudulently, that it should have started safeguarding action. Its failure to do this is fault.
38. In October 2019, a safeguarding concern was completed by social care staff. The evidence provided suggests this was due to contact from Ms X’s solicitor raising safeguarding issues. While a safeguarding concern was made at that time, there is no evidence of the Council taking further action until three months later. This delay is fault.
39. The action taken by the Council from February 2020 onwards included a formal safeguarding strategy meeting, meetings with Ms X and family members, a mental capacity assessment and best interests’ meeting. The Council also passed on the safeguarding concerns to the OPG. The Council then waited for the OPG to conclude its investigation, which resulted in the revocation of the LPA in June 2020. I am satisfied these were the appropriate actions for the Council to take.
40. The Council had completed a search with the OPG in November 2019 and received confirmation that an LPA was registered on 23 July 2019 for property and financial affairs. At this point the Council was holding over £10,000 of Ms X’s money. The Council had no authority to hold the money once it was aware of the LPA. It did not pass the money to Ms X’s son because it says it was safeguarding her money. However, as described above it did not progress the safeguarding investigation at that time.
41. While it was fault for the Council to continue to manage Ms X’s money once it knew about the LPA, I am not persuaded this caused Ms X a significant injustice as it meant the money was later returned to her. The Council could have used its statutory safeguarding powers in this situation but did not do anything for a further two months. While it can be argued the Council was acting in Ms X’s interests, it is important it follows the correct procedures and there is a lack of evidence to show it did this in this case.
42. Ms Z says that her mother came to live with her in 2020 and that she had to support her financially. She says that she did contact the Council asking it to release money as she was aware it still held her mother’s funds. Information provided to me shows Ms Z asked for £150 on 10 February, raised this at the safeguarding meeting and also requested £300 on 17 April 2020. The Council did not pay any money even though it was aware Ms X’s son had control of her finances and was not providing for Ms X. In April 2020, the OPG also requested the Council help out Ms X financially.
43. I have asked the Council why it did not release some of Ms X’s funds to her when requests were made by Ms Z and the OPG. It has not provided a clear answer but says that client affairs was being guided by the social worker carrying out the investigation with the OPG. It would be the role of the social worker to ensure Ms X’s needs were being met. I have not seen anything to show how the Council did this. It was aware Ms X’s son was using her money fraudulently and was working with the OPG to have the LPA revoked. When the Council wrote to the OPG on 24 February it said Ms X often does not have food and that transactions on the account show the money was being used by Ms X’s son for himself.
44. I am not persuaded the Council did enough to ensure Ms X’s needs were being met once her son had control of her money. While I have not seen anything to show it was aware Ms Z and Ms X were having to use foodbanks, there is enough other evidence to show Ms X had no access to her pension income. The Council refused to release Ms X’s money to her even though it should not actually have held this money. I consider the failure to ensure Ms X had access to money to meet her essential needs was fault.
45. Ms Z also complains about the requirement for a second mental capacity assessment in October 2020. The information provided shows the Council completed a mental capacity assessment in February 2020, the OPG completed another one in May 2020 and the Council then requested a further one in October 2020. Mental capacity assessments are time and issue specific. They are used to determine a person’s ability in respect of a specific circumstance and so one cannot be used for all circumstances. In this case, the three assessments were dealing with different questions and so while I can appreciate this was frustrating, I do not find fault.

Back to top

Agreed action

46. To remedy the injustice resulting from the fault identified in this case the Council will, within one month of my final decision, take the following action:

• Provide a written apology to Ms Z and Ms X acknowledging the faults identified and the injustice suffered;
• Pay Ms Z £750 to recognise her distress and frustration and time and trouble pursuing this complaint; and
• Pay Ms X £750 to recognise her distress.

47. Within three months of the final decision the Council will:

• Ensure staff involved in safeguarding investigations have appropriate training and guidance to ensure investigations are started appropriately and completed without delay; and
• Ensure staff in client affairs have appropriate training around LPA’s and safeguarding to ensure they manage client’s finances correctly.

Back to top

Final decision

48. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Back to top

Parts of the complaint that I did not investigate

49. Ms Z also complained about the Council’s failure to accept Ms X’s notice to quit her property. It is my understanding Ms X was a housing association tenant and so issues relating to her tenancy fall outside the Ombudsman’s jurisdiction and we are unable to consider them.

Back to top

Investigator's decision on behalf of the Ombudsman