The Ombudsman's final decision:
Summary: Miss T, complained on behalf of the late Mr G, about the failure of the Council and the CCG to arrange and provide suitable support to manage his property and financial affairs. Miss T said as a result Mr G accrued debt, could not access his bank account and experienced distress. On the evidence available, the Ombudsmen found a dispute between the Council and the CCG led to a delay in
Mr G receiving support to act for him and manage his property and financial affairs. It is likely, on balance, that Mr G could not understand the impact the faults had on him so did not experience injustice. The Council and the CCG have agreed to provide an update to the Ombudsmen and Miss T to show what improvements they have made to joint working arrangements to help prevent similar mistakes.
- The complainant, who I shall refer to as Miss T, complained on behalf of Mr G, about the failure of Derby City Council (the Council) and Southern Derbyshire Clinical Commissioning Group (the CCG) to arrange suitable support to manage his property and financial affairs when he lacked capacity to do so himself. Mr G’s professional representative, Miss T, says the Council and the CCG disputed responsibility after Mr G became eligible for healthcare funding and this meant he fell through a gap. As a result, he could not access his money or a personal allowance when he moved into a care home, he was overpaid housing benefit and money was taken from his bank account by an unauthorised person.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1)).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have considered information from Miss T provided in writing. I have also considered information and documents provided by the Council and the CCG named in this complaint. All parties have been given an opportunity to respond to a draft of this decision.
What I found
- 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 themselves.
- 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. Where someone lacks the mental capacity to decide about a course of action, including one involving any level of risk, they will not be able to give consent. In these circumstances, any decision or action should be made based on what is in the person’s best interests, following the requirements in the Mental Capacity Act 2005.
- The Mental Capacity Act 2005 introduced the role of the independent mental capacity advocate (IMCA). IMCAs are a legal safeguard for people who lack the capacity to make specific important decisions: including making decisions about where they live and about serious medical treatment options. IMCAs are mainly instructed to represent people where there is no one independent of services, such as a family member or friend, who can represent the person.
- A best interests meeting may be needed where an adult (16+) lacks mental capacity to make significant decisions for themselves and needs others to make those decisions on their behalf. It is particularly important where there are several agencies working with the person, or where there are unresolved issues regarding either the person's capacity or what is in their best interests and a consensus has not been reached. Issues around a person's capacity should however ordinarily be resolved before a best interests meeting is convened.
- NHS Continuing Healthcare is a package of ongoing care that is arranged and funded solely by the health service for individuals outside a hospital setting who have complex ongoing healthcare needs, of a type or quantity such that they are found to have a ‘primary health need’. Such care is provided to people aged 18 or over, to meet needs that have arisen because of disability, accident or illness. NHS Continuing Healthcare is not dependent on a person’s condition or diagnosis, but is based on their specific physical or mental health needs.
- The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (November 2012 (Revised)) (the National Framework) is the key guidance about Continuing Healthcare. It was updated in October 2018 but I have referred to the 2012 version as this is relevant to the period complained about. This says where an individual is eligible for Continuing Healthcare funding the CCG is responsible for care planning, commissioning services and case management. It also says, “where a person qualifies for NHS continuing healthcare, the package to be provided is that which the CCG assesses is appropriate to meet all of the individual’s assessed health and associated social care needs.”
- The National Framework says, the Council is, however, “not prevented from providing services, subject to the limits outlined in the [National Framework]. Indeed, in some cases, individual arrangements may have to be reached between [Council’s] and CCGs with respect to the provision of services. This may be particularly relevant if the person is to be cared for in a community setting… CCGs and [Councils] should operate person-centred commissioning and procurement arrangements, so that unnecessary changes of provider or of care package do not take place purely because the responsible commissioner has changed from a CCG to a [Council] (or vice versa).”
- Mr G lived in the community in a property owned and managed by a social housing landlord. He had difficulty managing money and a friend helped him manage his finances. Mr G had various health problems and was admitted to hospital for care and treatment. While in hospital he was assessed to see whether he was eligible for healthcare funding (CHC). The CCG decide he was eligible for CHC.
- Mr G was discharged to a nursing home after involvement from an IMCA and a best interests meetings held. After Mr G was discharged to the home the Council said it became apparent the ‘CHC worker’ (acting on behalf of the CCG) was unwilling to take responsibility for issues relating to his tenancy and finances.
- While Mr G was resident in the nursing home it contacted the regulator because Mr G could not access any of his income. The home said it had given Mr G ‘fake money’ to put in his wallet. It also loaned him money so he could buy personal items, such as toiletries and access social activities. As a result, the home made a safeguarding referral to the Council.
- A Council officer completed a mental capacity assessment to determine whether Mr G had capacity to manage his finances. Following this assessment which determined that Mr G lacked capacity in this area the Council held a best interests meeting which found that Mr G could not access his benefits or bank account. The attendees determined it was in Mr G’s best interests to have someone, such as an independent advocate, who could help him manage his finances.
- Mr G was referred to an independent agency for support to manage his finances. Once the agency gained access to Mr G’s financial affairs an officer discovered that an unknown third-party had gained access to Mr G’s bank account and removed funds. This was reported to the police in line with the Council’s safeguarding procedures.
- Miss T also said Mr G’s tenancy was not terminated and the housing benefit department had continued to pay money into his bank account. This carried on after he had moved to the nursing home and this generated an overpayment. Miss T said this was a cause for concern because Mr G had accrued debt through no fault of his own.
Miss T’s complaint to the Council and the CCG
- Miss T complained to the Council because of the concerns relating to Mr G’s financial affairs and property. Miss T said Mr G could not access his income as the CCG and the Council had both stated they were not responsible for providing him with support. This had led to problems with Mr G accruing a debt and someone accessing his bank account without authorisation.
- The Council’s summary of the complaint said, the CCG was responsible for
Mr G’s care and support arrangements from when it assessed him eligible for CHC. A Council officer had tried to resolve issues to the terminating Mr G’s tenancy and financial affairs. The unauthorised access into Mr G’s bank account was reported to the police to investigate further. The issue of who should deal with property and financial affairs when someone becomes eligible for healthcare funding was a disputed area. The Council and the CCG needed to look at possible solutions.
- The CCG’s summary of the complaint said, responded and confirmed Mr G’s eligibility for healthcare funding. In summary it said, although it was responsible for funding Mr G’s placement in the home this did not preclude the Council from working jointly with the CCG. The CCG said the responsibility for providing support for financial matters and terminating a tenancy remained with the Council.
- The Council sent a further update to the Ombudsmen in March 2018. It said:
- it was trying to arrange a meeting with the CCG to review the PA’s case and reflect on the transfer of case management;
- Mr G could now access his personal allowance; and
- the housing benefit overpayment was recovered from Mr G’s social housing landlord.
Review by the Council and the CCG’s representative
- The Council and the commissioning support unit (CSU) which represents the CCG met in April 2018 to review transfer arrangements between the Council and the CCG. The meeting wanted to identify learning for the future to minimise people, such as Mr G, being left without support or services which could lead to dispute between the Council and the CCG.
- The CSU said its involvement for those receiving CHC was limited to conducting reviews of the care package and its role was not to manage issues relating to finance and tenancies. It did not have the expertise or knowledge in this area and someone being eligible for CHC did not prevent social services from providing support.
- The review identified a gap in case management in some cases when people became eligible for CHC. The CCG was not present at the meeting and the CSU agreed back to the CCG for clarification.
- Miss T contacted the Ombudsmen to say Mr G had unfortunately passed away during this investigation.
- The evidence available shows Mr G was left without suitable support in place so he could manage his finances. The Council and the CCG identified that this was because of a lack of agreement about responsibility when someone became eligible for healthcare funding.
- Mr G had some support from a friend to help manage his finances when he lived at home and before he went into hospital. His bank account was accessed without his or his representative’s authorisation. I cannot say from the evidence available when this event occurred or whether his bank account was accessed without authorisation before he went into hospital. Therefore, I cannot say this happened because of fault by the Council or the CCG. When the issue came to light the Council referred the matter to the police to investigate as the most appropriate agency. The Council acted in accordance with its safeguarding procedures.
- Mr G could not access his personal expenses allowance while he was resident in the care home and so did not have money to pay for personal items such as toiletries. This situation stemmed from the lack of agreement about responsibility between the Council and the CCG. Statutory guidance associated with the Care Act 2014 says, in summary, the purpose of the personal expenses allowance is to allow people to meet those needs not met by formal funding arrangements. Mr G could not do so while ever the dispute between the Council and the CCG meant he was left without appropriate help and support to manage his finances.
- Miss T says Mr G accrued debt because of a failure by either the Council to terminate his tenancy and cancel his claim for housing benefit. I have not seen evidence to show Mr G was pursued for a debt. The Council confirmed the housing benefit department recovered the debt from Mr G’s social housing landlord rather than Mr G directly.
- The Ombudsmen cannot say which authority should have taken responsibility for Mr G’s property and financial affairs. This was up to the Council and the CCG to decide under their joint working arrangements. However, I find the Council and the CCG at fault for a delay in providing Mr G with suitable formal support to manage his property and finances. Even when it was known he lacked capacity to do so himself. The injustice is limited because it is likely, on balance, he lacked the capacity to fully understand the impact this situation had on him. In any case because Mr G has now passed away and the Ombudsmen cannot provide a personal remedy for any injustice he may have been caused.
- The correspondence and meetings between the Council, CCG and CSU identified a gap in providing support with property and financial affairs to some people transferring between health and social care services. This is fault but the Council and the CCG acted to provide Mr G with appropriate support and review the wider situation. This is good practice but is unclear what improvements have been made by the Council and the CCG following the reviews completed.
- The Council said it would continue to work with the CCG and commit to agreeing a joint approach to deal with similar occurrences.
- The CCG told the Ombudsmen that it acknowledges “the National Framework for Continuing Healthcare requires the CCG to work collaboratively with the Local Authority, when there is a joint package of care. However, the Health and Social Care Act (2012) does not give CCGs the legal remit to commission financial or property services, as this sits outside of healthcare.”
- The National Framework says “some individuals’ nursing or healthcare needs are such that the local authority is not permitted to meet their ongoing care and support needs, and instead they become fully the responsibility of the NHS. These are individuals who have been assessed as having a ‘primary health need’ through the processes set out in this National Framework and who are eligible for NHS Continuing Healthcare.”
- Mr G was assessed as having a primary health need and was not receiving a joint package of care provided by the CCG and the Council.
- Primary legislation referred to by the CCG does not define ‘continuing care’. The National Framework does not provide a definitive view on which authority is responsible for arranging support with finances or property services once some is assessed as having a primary health need. However, the framework is clear that once someone is eligible for continuing care the CCG is responsible for care planning, commissioning services and for case management as relates to the persons health and social care needs.
- Statutory guidance in support of the Care Act 2014 suggests councils can “provide or arrange healthcare services where they are incidental or ancillary to doing something else to meet needs for care and support and the service or facility in question is of a nature that a local authority could be expected to provide. Ultimate responsibility for arranging and monitoring the services required to meet the needs of those who qualify for NHS CHC rests with the NHS.”
- It is not for the Ombudsmen to decide whether CCGs or Council’s should take on responsibility for a person financial and property services in cases like this. The Ombudsmen are more concerned about situations where a person is left without suitable care or support to manage their finances or deal with property matters like Mr G was. Therefore, the CCG and the Council should work together to minimise the risk of this happening again in their locality.
- Within eight weeks of the final decision the Council and the CCG have agreed to provide an update in writing to the Ombudsmen and to Miss T to confirm what improvements have been made to prevent someone being left without a suitable representative or appointee for financial and property affairs when transferring between health and social care services/funding. The Council and the CCG will provide a copy of any new or amended joint working procedures/policy their health and social care staff are following to ensure best practice.
The Council and the CCH have agreed to the Ombudsmen’s recommendations and so I have completed the investigation.
Investigator's decision on behalf of the Ombudsman