The Ombudsman's final decision:
Summary: Miss Q complained that the Council removed her as her son’s appointee and failed to inform her of its decision. On the evidence seen, the Ombudsman finds no procedural fault by the Council in removing her as appointee and applying to become deputy in her place.
- The complainant whom I shall call Miss Q, complains that the Council removed her as her son’s (Mr K’s) appointee and failed to inform her of its decision
What I have investigated
- I have investigated the issues directly affecting Miss Q in her position as appointee for Mr K’s finances.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I discussed the complaint with Miss Q and considered the information she provided. I made enquiries of the Council and considered its response and the documents it provided.
- I gave Miss Q and the Council a copy of my draft decision and invited their comments.
What I found
- The Mental Capacity Act 2005 (“the Act”) is the legal framework for acting and deciding on behalf of people who lack the mental capacity to decide themselves. The Act and the accompanying Code of Practice 2005 (“the Code”) describe the steps to take when dealing with someone who may lack capacity to make decisions for themselves.
- The Code describes when a person’s capacity to decide should be assessed, how to do this, and how to decide on behalf of someone when they cannot. It also says that lack of capacity to decide in some areas of life may be a reason to question a person’s capacity to decide in other areas of life.
- A key principle of the Act is that any act or decision on behalf of a person who lacks capacity must be in that person’s “best interests”. The Act provides a checklist of steps that decision makers must follow to decide what is in the person’s best interests.
- A Council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which means he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk (section 42, Care Act 2014).
- An appointee is responsible for making and maintaining any benefit claims on behalf of someone who is incapable of managing their own finances. There can only be one appointee acting on behalf of that person at any one time. The appointee must:
- tell the benefit office about any changes which affect how much the claimant gets, and
- spend the benefit it receives in the claimant’s best interests.
- A deputy acts on behalf of someone who cannot manage their own affairs. The Court of Protection is responsible for considering applications and appointing deputies
- Mr K lives in supported housing accommodation (“the provider”) and Miss Q was his appointee for the purpose of his benefits claims. She also managed his finances (though she had not been specifically appointed as his “Deputy” by the Court of Protection). In 2016 the Council became aware that Miss Q was failing to provide sufficient funds for food and activities for Mr K. The Council initiated a safeguarding investigation and its records show that this was its second investigation into these concerns.
- A safeguarding strategy meeting was held by the Council on 1 March 2016 and it is noted that Miss Q gave her apologies and did not attend the meeting. At the meeting, it was decided that the social worker (SW1) would complete a mental capacity assessment for Mr K with regards to his finances. It was also decided that SW1 would speak to Miss Q and advise her that Mr K required £100 per week for food and activities and this payment should be made to the housing provider.
- A safeguarding strategy review meeting was held on 23 June 2016. It is recorded in the minutes that Miss Q was informed of the meeting and had chosen not to attend. The minutes also state that Miss Q had failed to make the agreed weekly payments of £100 to meet Mr K’s food and activity needs. The professionals attending the meeting agreed that this was affecting Mr K’s health and wellbeing. It was decided that the Council would inform Department for Work and Pensions (DWP) about the safeguarding concerns and of its intention to take over deputyship for Mr K’s finances.
- On 20th July 2016, the Council wrote to Miss Q. It said that “The outcome of several safeguarding meetings was a recommendation for you to provide £100.00 each week which would be reviewed regularly. [The housing provider’s] staff have confirmed that you continue to provide only £40.00 each week. This is a shortfall of £60 per week. This is impacting on how much food and activates that [Mr K] has access to and is causing concerns for his health and wellbeing….I would urge you to provide the money agreed at the safeguarding meeting that would enable staff to support [Mr K] to access activities that would meet his need as well as food as and when required”. Relevant to this investigation, the letter advised Miss Q that at the safeguarding meeting held on 233 June 2016 the following action was agreed:
- “Due to [Miss Q] providing insufficient funds for [Mr K], Islington Client Affairs will be approached with the intention to initiate transfer to appointeeship and application for deputyship regarding [Mr K’s] finances”
- An Independent Mental Capacity Assessor (IMCA) completed a report on 10 August 2016. The purpose of the report was to discuss concerns with various interested parties and make decisions regarding Mr K’s best interests. The IMCA was not able to obtain the wishes of Mr K due to his lack of capacity to make decisions. However, she did observe Mr K in his home and at the day centre. She also consulted with Miss Q, SW1 and the provider. With regards to the management of Mr K’s finances the IMCA concluded that the Council’s intentions to seek a deputyship order over Mr K’s finances was clearly in his best interests.
- In September 2016, the Council held a best interest meeting with input from Miss Q and her friend. SW1 shared the outcome of the mental capacity assessment and concluded that Mr K did not have the capacity to manage his finances. The attendees discussed the various options available for the management of Mr K’s finances which included:
- Miss Q to continue to manage Mr K’s money;
- Mr K to manage his finances with support from staff;
- The Council to manage his benefits under appointeeship;
- The Council to manage his finances under deputyship.
Except for Miss Q and her friend, all others present at the meeting decided that it was in Mr K’s best interests for the Council to manage his finances under a deputyship. It is recorded in the minutes of the meeting that Miss Q said that she “would have nothing more to do with [Mr K] if his finances were removed from her and were managed by Client Affairs”.
- On 21 June 2017, SW1 spoke to Miss Q and told her that a referral had been made to the Council to take over as Mr K’s deputy due to the safeguarding concerns raised about her management of his finances. An email was sent to Miss Q on 29 June 2017 confirming this.
- In November 2017, the Council took over management of Mr K’s finances. Miss Q complained to the Council about its decision to remove her as appointee and take over the management of her son’s finances. She also said that the Council failed to inform her of its decision in writing. The Council responded to Miss Q in February 2017. It said that it did not uphold her complaint about not being consulted about the changes. It accepted that whilst there was “sufficient communication that this change would happen…there was no written communication to advise you of the exact date that this would happen”. It partially upheld this element of the complaint. Miss Q remained dissatisfied and complained to the Ombudsman.
- Miss Q says that the Council wrongly removed her as her son’s appointee and failed to inform her of its decision.
- After considering the evidence available to me, it is my view the Counicl acted in accordance with the law, which says that Councils “should where practicable and appropriate, contact anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, or anyone involved in their care”. It is documented that Miss Q was invited to attend the safeguarding strategy meetings held in March 2016 and June 2016. However, she chose not to attend. Miss Q and her friend did attend the best interests meeting held in September 2016. An IMCA also spoke with Miss Q before the best interests meeting.
- In relation to the Council’s decision to apply to be deputy for Mr K’s finances, I have taken into account:
- The Council’s obligations to safeguard adults at risk from financial abuse and neglect and a history of safeguarding investigations about the same issue;
- The mental capacity assessment completed by the Council;
- The report completed by the IMCA;
- The best interests meeting held in September 2016 where it was decided that the Council would apply to the Court of Protection to become deputy, and the reasons for this;
- The Council’s communication with Miss Q and its attempts to consult with her.
- I consider there is no evidence of fault in the Council’s decision to apply to become deputy for Mr K’s finances and remove Miss Q as appointee. This decision is a professional judgement and under section 34 of the Local Government Act 1974 the Ombudsman cannot challenge a professional judgement unless there is procedural fault in the way the decision was reached. Based on the information I find that the officers acted without procedural fault and made a reasoned decision on the information they had available.
- The Council has apologised to Miss Q for not confirming in writing the exact date that it would take over the deputyship of Mr K’s finances. I consider the Council’s apology is a suitable remedy for this.
- I have completed my investigation finding no fault by the Council.
Investigator's decision on behalf of the Ombudsman