Summary: Mr X complains about the Council’s handling of his friend’s belongings after he went into a care home. He complains the Council did not have authority to dispose of the belongings. The Ombudsman finds fault with the Council’s actions. The Council has agreed to apologise to Mr X and pay him a financial remedy.

The complaint

1. Mr X complains about the Council’s handling of his friend, Mr A’s, belongings after he went into a care home. Mr X complains that Council did not have authority to dispose of Mr A’s belongings because Mr A had capacity at the time and the Council had not obtained deputyship. Mr X also says the Council told him it would put Mr A’s belongings into storage.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I considered the information Mr X provided.
5. I made enquiries with the Council and considered the information it provided.
6. I sent two draft decisions to Mr X and the Council and considered their comments.

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What I found

Care Act 2014

7. Under section 47 of the Care Act, local authorities must take reasonable steps to prevent or mitigate the loss or damage of a person’s moveable property or belongings when:

• the person is receiving care and support in a care home that has been arranged by the local authority, or where a person has been admitted to a hospital, and;
• where it appears to a local authority that there is a danger of loss or damage to moveable property because the person is unable to protect or deal with the property or belongings and where no suitable arrangements have been, or are being, made.

8. For the purposes of performing its duty, the local authority may enter any premises which the person was living in immediately before being provided with accommodation or admitted to hospital and deal with any moveable property or belongings in any way that is reasonably necessary to mitigate or prevent loss or damage. Local authorities may do this where:

• the person has given their consent; or
• where the person lacks capacity to consent a person legally authorised to give consent on their behalf has done so; or
• where the person lacks capacity and there is no legally appointed person, the local authority is satisfied that it would be in the person’s best interests.

Mental Capacity Act 2005 and Code of Practice 2007

9. The Mental Capacity Act 2005 provides a statutory framework for people who lack capacity to make decisions for themselves. It sets out who can take decisions, in what situations, and how they should go about this. The Code of Practice 2007 provides further guidance and information about how the Act works in practice.
10. The best interest principle underpins the Mental Capacity Act 2005 and is set out in section 1(5) of the Act.

“An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”

This principle covers all aspects of financial, personal welfare, and healthcare decision making and actions.

11. Section 4 of the Mental Capacity Act 2005, and chapter 5 of the Code of Practice, sets out what should be considered when trying to work out the best interests of a person who lacks capacity to make a certain decision.
12. The following steps should be considered:

• Encourage participation: do whatever is possible to permit and encourage the person to take part, or to improve their ability to take part, in making the decision.
• Identify all relevant circumstances: try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves.
• Find out the person’s views: try to find out the views of the person who lacks capacity, including the person’s past and present wishes and feelings, any beliefs and values that would likely influence the decision in question, and any other factors the person themselves would be likely to consider if they were making the decision for themselves.
• Avoid discrimination: not make assumptions about someone’s best interest simply on the basis of the person’s age, appearance, condition or behaviour.
• Assess whether the person might regain capacity: consider whether the person is likely to regain capacity. If so, can the decision wait until then?
• Consult others: if it is practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs, and values. In particular, close friends who take an interest in the person’s welfare should be consulted.
• Take all of this into account: weigh up all the factors in order to work out what is in the person’s best interest.

LGSCO Principles of Good Administrative Practice (2018)

13. This is guidance the LGSCO has published which sets out the principles of good administrative practice. One of the principles is putting things right. This means councils should acknowledge where there has been mistakes and apologise where appropriate. Councils should also put mistakes right quickly and effectively.

Background

14. Mr A had been diagnosed with Lewy body dementia. He lived at home with the support of a care package.
15. Mr X lives in America and is a close friend of Mr A. Mr X flew to England in late May 2018 to visit Mr A. Mr X stayed in England until late June 2018.
16. Mr X had lasting power of attorney for Mr A, which was registered in October 2018.
17. Mr A died in October 2018 and left all his possessions and assets to Mr X.

What happened

18. In May 2018, Mr A was admitted to hospital following a fall at home. The Council decided it was not safe for Mr A to be discharged back to live in his home and decided his needs would be best met in a care home. The Council was aware at this point that the lease on Mr A’s property was due to expire in June 2018.
19. At the end of May 2018, Mr X visited Mr A in hospital. He told the Council he was a close friend of Mr A. The Council discussed the discharge plan with Mr X and Mr X offered to help view potential care homes.
20. In June 2018, the Council completed two mental capacity assessments, one for financial management and one for the decision of where Mr A would live after leaving hospital. The outcome of both assessments was that Mr A lacked capacity. With the help of Mr X, Mr A decided his preferred care home and the hospital discharged him in early June 2018.
21. During this time, Mr X contacted the Council to ask about Mr A’s belongings in his property. Mr X told the Council the lease was due to expire in a few days and asked the Council to arrange to remove Mr A’s belongings from the flat and move them into his room in his care home. Mr X also asked the Council to decide what to do with the rest of his belongings, suggesting they could be stored.
22. In July 2018, the Council visited Mr A’s property to assess the contents. The case notes recorded that the Council officer had assessed the contents to be in a saleable condition. It further noted that a will had been found. The Council asked its contractor to clear the property at the end of July 2018.
23. The Council told Mr X that Mr A’s property was being cleared in August 2018. The Council explained it did not arrange for storage as Mr A did not have any next of kin and had not left a will. It therefore felt storage was not appropriate as Mr A would have been charged for this. The Council also told Mr X that it had not found a will.
24. Mr X made a complaint to the Council and challenged the Council’s view that Mr A did not have capacity. Mr X explained Mr A’s solicitor had him independently assessed and he was found to have capacity. Mr X also explained Mr A did have a will.
25. The Council responded to Mr X’s complaint in September 218. It said mental capacity assessments were time and decision specific. It confirmed it carried out capacity assessments, in relation to manging finances and where Mr A should live, and that the result of these assessments was that Mr A did not have capacity. The Council again confirmed it had not found a will.
26. The Council also explained it decided to clear the contents of Mr A’s property because there was no realistic prospect of him returning to the community and the storage of his belongings, at his expense, would not have been in his best interest. The Council said Mr A’s belongings had been valued and assessed as not being of saleable value.
27. In November 2018, in response to a councillor’s enquiry, the Council said it there had been no mismanagement of Mr A’s affairs and that it had managed Mr A’s affairs responsibly and with integrity.
28. In response to my enquiries, the Council accepted there had been fault in the way it managed the situation. It accepted it needed to be more thorough around best interest planning and mental capacity assessments.
29. Mr X sent me photographs of the Mr A’s flat which showed some of his belongings.

Analysis

30. Based on the evidence available, it is clear the Council had a responsibility to prevent or mitigate the loss or damage to Mr A’s belongings under the Care Act 2014. This was because he was receiving care and support in a care home arranged by the Council and because it was clear there was a danger of loss, as Mr A’s landlord wanted the property back. Mr A was also not able to arrange the removal of his belongings himself.
31. The Council had assessed Mr A as having no capacity to make decisions around financial management and where to live. Mr A could therefore not give the Council consent to deal with his belongings. Mr A also did not have a legally appointed person to give consent to the Council to deal with Mr A’s belongings. However, the Council could enter Mr A’s property to deal with his belongings to mitigate or prevent loss or damage if it was satisfied it was in his best interest.
32. The Council entered Mr A’s property to assess his belongings. The Council had decided that the contents were saleable, and records show a will had been found. While I am unable to definitively say the will the Council found was the original will, I think it was likely, on balance, to have been the original will.
33. The Council said that it had decided not to store Mr A’s belongings because they were not of saleable value and therefore would not have been in Mr A’s best interests as storage would have incurred costs. This is contradictory to what the Council had recorded after it had visited Mr A’s property.
34. The Council has provided conflicting accounts over whether Mr A’s will had been found. The Council has said numerous times it had not found a will. However, the case notes state that a will had been found. On balance, I can see no reason why the Council would record that it had found a will if it had not.
35. Therefore, I find it reasonable to expect the Council to have contacted Mr X for his input around what to do with the belongings as he would have been the beneficiary of Mr A’s belongings. The Council did not do this and this is fault.
36. Further, the Mental Capacity Act 2005 and the Code of Practice outlines the steps that should be taken when working out what is in a person’s best interest. The Council did not follow these steps. Therefore, the Council’s decision was not made properly and there is uncertainty whether the decision made was in Mr A’s best interest. This is also fault.
37. The faults identified caused Mr X an injustice as Mr A had left him all his possessions and assets. Mr X has lost out on the opportunity to keep Mr A’s belongings because of the Council’s flawed decision to dispose of them. This is highly distressing for him.
38. Mr X said he felt the Mr A’s items were worth around £10,000. Mr X also sent me some photographs of Mr A’s flat. Having reviewed the photos, I am not satisfied I am able to say, on balance, that Mr A’s belongings were worth £10,000.
39. I also find fault with the way the Council handled Mr X’s complaint. This is because the Council did not accept there had been any wrongdoing. However, when I made enquiries during my investigation, the Council accepted there had been fault in the way it handled the situation. The Council should have acknowledged its mistakes during its own complaint procedures.
40. I find the fault identified caused Mr X an injustice. This is because Mr X had to take the time and trouble to pursue this complaint.
41. In response to my first draft decision, Mr X stated he was unaware the Council had found a will at Mr A’s flat. He said as he only had a copy of the will, the presumption is Mr A destroyed the original. Therefore, he incurred extra charges from the solicitor as they had to complete work to rebut this presumption as they did not believe Mr A had destroyed the original.
42. I am of the view that, on balance, the Council was likely to have found the original will when they visited Mr A’s property. For this reason, I find the fault identified caused Mr X an injustice as he suffered a quantifiable financial loss.
43. In response to my first draft decision, the Council offered to write off Mr A’s outstanding residential fees of £7370.14 as an additional remedy.

Agreed action

44. To remedy the injustice caused by the faults identified, The Council has agreed to complete the following.

• Apologise to Mr X and pay him £1500 for the distress and time and trouble caused.
• Pay Mr X £4431.41 to reimburse him for the extra fees incurred from the solicitor. The Council can offset this amount against Mr A’s outstanding care home residential fees of £7370.14. The Council has agreed to write off the remaining £2938.73.
• Remind all relevant staff of the importance of following the process set out within the legislation and code of practice when making decisions in someone’s best interest.

45. The above remedies should be completed within four weeks of the final decision.

• Review its procedures with its clearance contractors to ensure there is a clear audit trail for key decisions made regarding someone’s belongings, including keeping a reasonable inventory of belongings to be stored or sold.
• Review its procedures and ensure there are appropriate measures in place to check that decisions made in someone’s best interests have been made properly.

46. The above remedies should be completed within three months of the final decision.

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Final decision

47. I find fault with the Council’s handling of Mr A’s belongings. I also find fault with the Council’s complaint handling. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman