Summary: Mr C complains on behalf of himself and his aunt, whom I shall call Ms X. Mr C complains about the way in which the Council responded to concerns, which were raised against him, about the way in which he supported his aunt. The Ombudsman found fault, which resulted in distress to Mr C that could have been avoided. The Council has agreed to apologise to Mr C and pay him a financial remedy for distress.

The complaint

1. The complainant, whom I shall call Mr C, complains on behalf of himself and his aunt, whom I shall call Ms X. Mr C complains about the way in which the Council responded to concerns, raised against him, about the way in which he supported his aunt.
2. Furthermore, Mr C says the Council failed to agree to refund the legal fees he had to spend (around £50,000) to deal with the allegations made against him, and with the Council’s actions in response to those.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the Council reached its decision. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

6. I considered the information I have received from Mr C and the Council. I also considered:
• A detailed report, of more than 100 pages, from an independent investigation the Council commissioned into Mr C’s complaint.
• Mr C’s and the Council’s comments on the report.
7. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I reached my final decision.

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What I found

Background

8. Ms X set up a Lasting Power of Attorney (LPA) in 2009 for her financial affairs, appointing Mr C. Since then, Mr C became increasingly involved in supporting Ms X with her financial affairs. Ms X was diagnosed with dementia and Alzheimer’s in December 2015. Mr C has said that, at that time, she spent a lot of time at her sister’s bungalow (Mr C’s mother), who lived across the road. One and the same care agency was providing homecare support to Ms X and to her sister’s husband (Mr A). This support was arranged and paid for privately.
9. Ms X’s sister went into hospital in December 2016 and passed away several weeks later. Mr C says that when his mother was in hospital, Ms X accepted his proposal to move into her sister’s property. This meant Ms X could combine her package with Mr A, and thereby increase their overall support. After Mr C’s mother passed away, Ms X stayed in the bungalow, contributing to the overall cost of the joint care package. Mr C says Ms X agreed to this and never expressed a wish to go home.
10. In May 2016, Mr C changed the care package to 24/7 live-in homecare support. He employed two carers to provide this on a rotational basis. However, Mr A’s dementia worsened, and he moved into residential care in July 2016.
11. In September 2016, the Council received a concern about Ms X. The concern was raised by a person known to her, who said Mr C was bullying Ms X and not allowing her to return to her own home. The Council also received some concerns about Mr C managing her finances. The Council treated the concerns as a safeguarding alert and allocated the case to a social worker (SW1).
12. The Council carried out a needs assessment of Ms X, which recorded:
• Ms X lacked mental capacity to make decisions about her finances, due to her cognitive impairment. She could understand most information but could not retain or weigh this up and was at risk of financial abuse. As such, SW1 advised Mr C to activate the LPA, which would provide Mr C with a legal framework to act on Ms X’s behalf.
• Ms X presented with capacity to make decisions about her residence and welfare. She could communicate her needs and very clearly said she wanted to return to her own home. She was very clear that she did not like living with Mr A and did not choose to live with him.
• As such, Ms X would move back to her own home on 17 October 2016 with the same level of care. Ms X had enough funds to privately pay for the care package and Mr C agreed to this.

Complaint 1: The way in which SW1 responded to, and looked into, the concerns.

13. Mr C says that SW1 (who was involved with the case from 13 September to 17 October 2016, was unprofessional. He said:
• She had a ‘closed mind’ and believed from the outset the allegations against him were true. She failed to consider that Ms X had never said she wanted to return home.
• She also failed to consider the carers were manipulating Ms X.
14. The Council has said that:
• It had to provide a proportionate response to the safeguarding concerns to find out the facts. SW1 therefore gathered information to decide if it would have to take any action about the concerns.
• SW1 got information from several sources to inform her safeguarding enquiries, including: Ms X, Mr C, Ms X’s GP and a Community Psychiatric Nurse.
• During the investigation, SW1 found that large amounts of money had been paid from Ms X to Mr C. There was therefore a need to look into this further. As a LPA had been registered for property and finance, with Mr C as named Attorney, the Council made a referral to the Office of the Public Guardian (OPG.) It was their role to subsequently decide if further investigations would be required.
• The records do not show that SW 1 made any assumptions about Mr C or had any negative views about him.
15. The report said that:
• SW1 adopted a proportionate response to the safeguarding referral, taking on board the expressed wishes of a capacitated adult, who wanted to return home.
• Ms X’s advocate felt the actions of social services in relation to the safeguarding concerns and referring these concerns to the OPG were appropriate and reasonable.
16. At a best interest meeting in October 2016, all participants (including Mr C and Ms X’s advocate) agreed that she should move back into her own property.
17. Mr C told me he believes that SW1 told him to register his LPA, so she could refer him to the OPG to investigate him. However, he subsequently agreed that it was correct to advise him to register the LPA, because his aunt had lost her capacity to manage her finances.
18. According to the records, Mr C did not express any concerns, during September and October 2016, that his aunt was being set up and manipulated by her carers.

Assessment

19. I found that the Council properly responded to the concerns raised. Furthermore, there was no fault by the Council in its decision to refer its concerns about Mr C’s large payments to the OPG.
20. At this stage, the Council did not fail to consider if the carers were manipulating Ms X, because there is no evidence that Mr C had raised these concerns at this point in time.

Complaint 2: Mr C’s complaint about the way in which the Council carried out its mental capacity assessments

21. Mr C complains the Council carried out its mental capacity assessments in an unprofessional manner. He says that, as a result, their findings were seriously flawed and unreliable. Mr C says:
• The mental capacity assessments were carried out with the homecare workers present. However, both social workers should have considered that the carers may have been manipulating and prompting his aunt to answer questions in a particular manner.
• Both social workers were unduly influenced by the carers and their false allegations that he was bullying and abusive towards his aunt.
• Both social workers set out to show that his aunt did have mental capacity, so they could exclude him from any decisions.
22. The Council (SW1) carried out the first mental capacity assessment on 19 September 2016. It concluded that Ms X did not have capacity to manage her finances. The second capacity assessment was carried out on 6 January 2017 by a different social worker (SW2). It concluded that Ms X was able to discuss the need for some works / repairs to be done to her property, and clearly and repeatedly said she did not want any major works to be done or the volume of repairs Mr C proposed.
23. The report concluded these two assessments were carried out before Mr C had raised concerns about the possibility of carers influencing or manipulating his aunt. The social workers felt that having the carer present for the formal assessment interview would assist Ms X in feeling less anxious about the assessment. Based on the information available to the social workers at this stage, both made a reasonable judgement that it was in Ms X’s interests for the carer to be present at the assessment interview.
24. The next capacity assessment took place on 18 May 2017. It was to determine if Ms X had capacity to understand money management and her finances. The assessment says that:
• Ms X repeatedly said she would like to stop Mr C looking after her money (revoke her LPA) as she did not trust him. Instead, she wanted the Council to help her manage her money.
• Ms X was unable to retain financial information and weigh up decisions about her finances. Without support she would be unable to pay bills. She lacked capacity to manage her own finances independently.
• Mr C has not enabled his aunt to have access to her own bank account so she can pay for things when she wants to, despite several letters (from the OPG and the Council).
• Action: Referral to the Financial Protection Team to start process with support from legal sections and Court of Protection to have current LPA revoked.
25. A further two mental capacity assessments (number four and five) took place on 21 June 2017.
• The first of these assessments was to determine if Ms X had capacity to make decisions about contact arrangements. Ms X had said she wanted to have less contact with Mr C and his family, because “he was a bully and she did not trust him”. The record of the assessment stated Ms X was able to explain her reasons and repeatedly said she did not trust Mr C and would be better off without him.
• The second assessment concluded Ms X had capacity to make decisions about her care and support arrangements. She wanted to stay at home with her 24/7 package to continue, rather than moving into a care home.
26. The report found that:
• All assessments were recorded in line with local policy and procedure, as well as national guidance. Each assessment was well recorded, with clear rationales set out to support the assessment findings.
• There was no evidence to indicate the social workers carried out the assessments in an unprofessional manner or with “pre-planned intentions of reaching particular findings about Ms X’s capacity.
• However, Mr C had been expressing concerns in 2017 that the homecare workers were unduly seeking to influence how Ms X presented to social workers, including when the carers were present during visits and mental capacity assessments. Mr C also expressed concerns the care workers were influencing her to express negative opinions and anxieties about him and the way he was managing her finances and living arrangements. However, there is no evidence that the Council considered these concerns when carrying out the assessments in May and June 2017.
27. The following examples (letters from Mr C’s solicitor) include references to Mr C’s increasing concerns about the impact the carers have on what Ms X is saying.
• A letter dated 25 January 2017: “It is our client’s firm belief that many of the trivial comments attributed to Ms X about the financial events and procedures detailed in your letter have either come directly from the carer or Ms X has been prompted by her (carer).
• Two letters dated 22 June and 4 July 2017, which mentioned Mr C believed the carers were making false allegations that he was intimidating Ms X and the carers, and he requested a meeting with the carers and SW2 to discuss this.
• A letter dated 27 July 2017 which said Mr C was concerned that, over time, the carers’ influence over his aunt has grown; answering for Ms X. It said that Mr C was extremely concerned about the carers’ influence and his aunt’s increased isolation and vulnerability.
28. The Council agreed that:
• Having been advised of Mr C’s views in respect of the carers being present during the completion of the assessments, the social workers should have considered this when completing the assessments in May and June 2017. However, it is not possible to conclude if/how the outcome of the assessments would have been different if a carer had not been present.
• It should have carried out a formal safeguarding investigation, especially after the solicitor’s letter of 27 July 2017. This would have provided a robust framework to address the issues and concerns that were being raised by Ms X, her carers and Mr C.

Assessment

29. The report was clear that the assessments themselves were carried out professionally and in an unbiased manner.
30. It was the view of the social workers at the time, that Ms X would benefit from having one of the carers present during the capacity assessments. This is a view that social worker are entitled to reach. However, it would have been good practice if the social workers had recorded, on each occasion, that it had asked Ms X if she agreed to this and recorded her response.
31. The Council has acknowledged that it failed to consider, respond and investigate the increasing concerns Mr C raised during 2017 about the carers influencing his aunt. I agree with this, which was fault. SW2 failed to keep an open mind to the possibility that (at least some of) Mr C’s concerns about the carers could be valid. This was especially important, because Ms X was a very vulnerable person who was in a very vulnerable position.
32. As such, the Council should have:
• Carried out a safeguarding investigation earlier (it eventually carried one out in August 2017 after Mr C provided tape recorded evidence).
• Found alternative arrangements (if needed) to have an advocate support Ms X during her assessments, rather than a carer, from the third assessment onwards. This would have ensured there would have been less chance of potentially influencing her answers, and would have increased Mr C’s confidence in the process.
33. However, I am unable to come to a view, on the balance of probabilities, if this would have had an impact on the outcome of the capacity assessments.

Complaint 3: Mr C’s complaint the Council failed to organise an independent mental capacity assessment

34. The Council agreed at a case conference in November 2016, that it would arrange an independent mental capacity assessment, to establish Ms X’s capacity to make decisions about her residency and about her care and support.
35. Mr C’s solicitor reminded the Council on 25 January 2017, that it had not yet organised this. The letter highlighted, amongst others, the need to assess Ms X’s capacity to manage (some) aspects of her finances, by having her own bank account.
36. The Council told Mr C’s solicitor, in a letter dated 16 February 2017 that: “As this case has been going for some time, with some continued disagreement, the Council are making enquiries of independent experts to carry out a capacity assessment about her ability to make decisions about”:
1. Her residence
2. Care and support
3. Ability to manage her finances
4. Repairs to her property
37. The letter also said that: “If an independent expert deems that Ms X lacks capacity relating to any of the above issues, then obviously Best Interests decisions will need to be made and if there is a dispute, then an application to the Court of Protection would have to be considered. However, the Council would see this as a last resort especially given the fact that Ms X would have to pay for her own legal costs. (…) I shall revert to you with more information regarding experts including timescales and costs”.
38. Mr C’s solicitor reminded the Council on 3 April 2017 that it had still not arranged the independent capacity assessment. As such, Mr C would now arrange his own independent assessment.
39. In response, the Council said that “with the passage of time, the Council does wonder whether this is actually necessary, as it does seem that since the issues arose, and since Ms X has returned home on a permanent basis, the substantive questions of her residence and care and support needs appears to be resolved. There appears to be no dispute about her remaining at home with the 24-hour care package she funds, in accordance with her assessed needs”. It asked the solicitor to ask Mr C if he agreed with this view.
40. However, Mr C’s solicitor did not provide a response. Mr C told me he did not respond because he felt he had made his views clear in the above letter of 3 April 2017. The Council says the OPG had advised Mr C that if he disagreed with the outcome of a capacity assessment from the Council, he should refer this to the CoP. However, Mr C told me he did not go to the CoP because he hoped an independent capacity assessment would resolve the dispute and conclude his aunt did not have capacity.
41. Mr C’s solicitor sent email to the Council on 10 August 2017, to say that Mr C still wanted an independent capacity assessment in Ms X’s best interests. According to the records, Mr C’s solicitor told the Council on 16 September that Mr C had found a suitable expert who would carry out the assessment on 5 October. Mr C’s solicitor said they would write the ‘letter of instructions’ for the consultant. The Council, explaining its expertise in dealing with the CoP, and advised the letter should be in the format of a standard letter of instruction used in the CoP. The Council offered on 22 September to prepare a draft letter using its standard template. However, Mr C’s solicitor insisted they would write the letter.
42. It took until 29 September 2017 before the solicitor shared the first draft with the Council for comments. The Council advised the same day that the solicitor had not prepared the letter in the required format, in case it would have to go to the CoP. Mr C’s solicitor sent a revised version on 2 October (end of the day), advising the consultant would ideally need to receive it by the evening of 3 October. The Council responded by explaining it would have to share the draft with a colleague the next day. However, due to IT problems, the Council was unable to approve the draft the following day. Mr C decided to go ahead with the assessment anyway, because he said: there would otherwise have been a further delay by rescheduling the assessment. The Council said on 5 October that it was very disappointed Mr C decided to go ahead on his own. It asked the solicitor to ask Mr C to postpone it as otherwise it would not be able to pay half of the costs involved.
43. The mental capacity assessment on 5 October 2017, found that:
• Ms X was not able to retain information for very long
• Ms X was unaware she had a solicitor acting for her. She did not have the capacity to start and follow through a litigation process.
• Ms X would forget information and correspondence about her finances. This would impact her ability to decide how to dispose of assets. She would therefore be vulnerable to exploitation. She did not have capacity to take control of her finances.
• She was happy with Mr C managing her finances and did not have the ability to decide / weigh up if it would be better for somebody else to do this, why and who this should be.
• She had little idea about some of her conditions and why she takes tablets. But in other areas had capacity to make decisions about her care.
44. The report said that: the failure to carry out the independent assessment, contributed to a lack of trust and cooperation between both parties. This complaint may well have been avoided, had social services kept to the agreement made in November 2016 to arrange an independent professional to conduct a mental capacity assessment.
45. Mr C agrees with that. He said that, if the Council had carried out the independent assessment immediately:
• His aunt would not have been subjected to the abuse she suffered from the carers for eight months.
• Social Services would not have been misled by the carers.
• He and his aunt would not have needed Legal Assistance and therefore not have incurred the legal costs.
46. The Council has acknowledged that it did not commission an independent capacity assessment as agreed in November 2016. However, it does not agree the complaint would have been avoided if the independent capacity test had been completed.
47. In the end, the Council agreed to go ahead with an independent assessment. However, the Council has said it will not contribute to the cost of this assessment, because Mr C’s solicitors refused the Council’s repeated offers to prepare the letter, and were subsequently unable to prepare a letter in the correct format.

Assessment

48. The Council has acknowledged that it failed to organise the independent capacity assessment agreed to in November 2016. This was fault. This led Mr C to commission a capacity assessment of his aunt in May 2017, and another one in October 2017.
49. I am unable to come to a view how much difference it would have made if the Council had organised an independent capacity assessment after the meeting in November 2016. Capacity assessments are time specific and I am unable to come to a view what conclusions an independent assessor would have reached at that time.
50. However, I agree with the report that this delay contributed to a lack of trust and cooperation between both parties. It also contributed to Mr C’s sense of distress and frustration with the situation.
51. Furthermore, an independent investigation could possibly have resulted in bringing (some of) the disputes to a close earlier. However, I also have to take into account that:
• Mr C was aware of the option he could go to the CoP, at any time, if he disagreed with the outcome of any of the Council’s capacity assessments and/or if he believed that decisions were being made that were not in his aunt’s best interest. If needed, the CoP could subsequently have commissioned an independent capacity assessment.
• Mr C did not verify in April 2017 that he did not agree with the Council’s view, and that he did still want an independent assessment to take place.
52. Mr C has told me that he did not go to the CoP, because the agreement with the Council had been to have an independent capacity assessment first, followed by best interest meetings where needed. He says that, as such, he continued to pursue this path.
53. I did not find fault with the way the Council decided it should not contribute towards the cost of the independent assessment in October 2017.

Complaint 4: Mr C’s allegation that SW2 unduly influenced the outcome of the independent capacity assessment Mr C commissioned in May 2017.

54. Mr C says that, due to the Council’s failure to organise an independent capacity assessment, he decided to ask a company in May 2017 to carry out an independent assessment. The assessment was about his aunt’s capacity to make decisions about finances, repairs to her property, and about health and welfare.
55. Mr C says his aunt’s social worker (SW2) tried to unduly influence the outcome of this, by talking to the assessor after her visit, but before she wrote her report.
56. It was the assessor who contacted SW2 on 12 May 2017, the day after the assessment. The Council says the assessor called to express concerns, because Mr C had reportedly not carried out the actions which the OPG had asked him to do in a letter.
57. The report confirmed the contact was instigated by the assessor and not SW2. Furthermore, SW2 said she did not try to influence the assessor, who had already reached their conclusion. The report concluded there was no direct evidence SW2 sought to influence the outcome of the assessment.
58. The capacity assessment report, recorded that:
• The assessor asked the carer not to be present during her conversation with Ms X.
• Ms X’s long and short-term memory was slightly impaired.
• Ms X said she did not want Mr C to manage her money anymore. She wanted to cancel her LPA and let ‘other professionals’ manage her finances. She was consistent throughout with this wish. She said Mr C did not show her bank statements to her. Ms X was also very clear that she wanted to be able to go shopping without asking Mr C for money every time. She also felt Mr C could decide to sell her house against her wish.
• Ms X was adamant she did not want Mr C involved in decisions about her health and welfare.
• Although Ms X has memory issues, they are not to the extent that she cannot understand, retain and weigh up information to make decisions and communicate them about the management of property, finance and health and welfare. She also has capacity to make decisions about any LPA. She has capacity to decide how and who she wants to manage her affairs.
59. Mr C says the Council agreed at a meeting on 12 September 2017 that the assessment should be deemed unsafe, because of potential influence by SW2. However, I have not found evidence the Council expressed this view.

Assessment

60. While I can imagine, under the circumstances, that Mr C believes SW2 tried to influence the outcome of the assessment, I agree with the report there is insufficient evidence to conclude this.

Complaint 5: Mr C’s complaint that the Council prevented him to arrange essential repairs and maintenance at his aunt’s house

61. Mr C told the Council at a meeting in November 2016 that he was concerned about the state of his aunt's property. He said that a range of improvements and repairs would need to take place to make the property safe and suitable for his aunt and her carers. This included electrics and replacing the heating system.
62. Mr C says the Council agreed at the meeting to obtain a report from a contractor about the work needed and costings. Mr C complains the Council failed to obtain such a report and did not allow him to carry out the necessary works.
63. The action plan of the meeting in November 2016 said: “A contractor’s report to be provided to confirm the work needed along with costings and timescales. The Council reserves the right to commission their own”. The Council says this shows it was agreed that Mr C would provide this report.
64. The Council told Mr C on 19 January 2017 that:
• SW2 visited Ms X on 12 December 2016, 14 December and 6 January 2017. SW2 spoke to Ms X at length and concluded she had capacity to understand and make decisions about repairs. She understood her home needed some updating, but did not want Mr C to carry out major works including knocking down walls etc.
• She discussed with the Occupational Therapist that she would only need a level access shower.
• Ms X did not agree to the works proposed by Mr C, which would cost around £29,000. Such works would also potentially negatively affect her ability to continue to pay for 24-hour care.
• It was still waiting for the independent written evidence (report) from Mr C. Ms X said she would agree to an independent survey if needed.
65. However, Mr C’s solicitor said on 25 January 2017 that Mr C had already provided enough information and evidence about the work that should take place. As such, it would be up to the Council to: “carry out its own independent survey of the heating, plumbing and electrics at the property from suitably qualified professionals and advise us of the outcome”.
66. In response, the Council said on 16 February 2017 that, rather than discussing individual items, it would go ahead and commission an individual survey.
67. The OPG advised Mr C in March 2017, that if he disagreed with the Council's capacity test and intended to carry on with the work to the house, he should refer this to the Court of Protection. However, Mr C says that by then it was no longer possible to carry out the full repairs.
68. Mr C’s solicitor chased the Council in April 2017. The Council said in its response, that it had some difficulties locating a suitable expert. However, Mr C says he does not believe this, because there are many suitable surveyors in the area.
69. All parties agreed for the works on the shower to go ahead. It asked Mr C to confirm if he still believed the extensive work was needed and if he was planning to put his case to the CoP. Mr C did not respond to this.
70. Mr C told me:
• He did not proceed further with the major works that were needed, because he did not want his aunt to have to go into a care home for ten weeks to enable the works to take place.
• Due to the Council’s delay in organising an independent survey and refurbish the property, there has since been a need for ongoing reactive repair works.
71. The Council agreed it should have commissioned the survey to determine all the repairs that were absolutely needed and establish any risks. This would have enabled all concerned to make an informed decision based on accurate information.
72. The Council says: It carried out a mental capacity test of Ms X, which concluded she had capacity to make decisions about repairs and maintenance. Ms X clearly understood that some repairs to her heating and electrics would be needed. However, she did not want the extensive repairs suggested by Mr C. Ms X did also not want to temporarily move out of her home. The Council therefore carried out Ms X wishes. However, it should have organised the independent survey.
73. Mr C told me, when we discussed this aspect of his complaint, that there was nothing further to look at, because he agreed with the findings in the report and the Council admitted there should have been a survey.

Assessment

74. The minutes of the meeting state it was initially up to Mr C to provide a Contractor’s report of the work needed and the time/cost involved. The Council agreed in February 2017 to ask a surveyor to prepare a report about the work that would be needed. However, it failed to organise this, which was fault.
75. However, it is not possible to conclude, on the balance of probability, what specific difference this independent survey would have made:
• It is not the role of the Ombudsman to come to a view what works an independent surveyor would have identified as (absolutely) necessary
• I am unable to come to a view what works Ms X would have subsequently agreed to, based on such a report, taking into account she did not want major works to take place, and did not want to leave her property.
76. However, the Council’s failure to carry out the survey after February 2017, contributed to Mr C’s overall sense of distress and frustration.

Complaint 6: Mr C’s complaint that the Council wrongly accused him of acting against his aunt’s wishes and best interests

77. The report said that records showed there was a steady stream of concerns / accusations made by the two carers to the social workers, about Mr C being abusive to his aunt. It said the tone and content of the letters the Council sent, showed the Council believed the allegations and suspicions were factually correct.
78. However, the Council said it does not agree with this. It explained it has a duty to record, consider and investigate (where necessary) all concerns it receives. As such, it discussed the issues with Ms X and carried out capacity tests. Where Ms X had capacity, the Council acted on her requests, wishes and feelings as a capacitated individual as appropriate.

Assessment

79. I found there was no fault by the Council with its decisions to look into concerns raised about Mr C.
80. I have already concluded that:
• There was no fault by the Council in investigating the concerns raised in 2016 (see paragraph 19).
• The Council should have been more responsive to the increasing concerns Mr C raised in 2017 (see paragraph 31) by carrying out a safeguarding investigation into the allegations and concerns raised by Mr C and against him.

Complaint 7: Mr C’s complaint about the Council’s refusal to agree to a meeting in 2016

81. Mr C told the Council in October 2016 that it was important that his aunt remained updated about her finances. As such, he wanted the Council to agree to a meeting so he could provide information to his aunt about the financial implications that her 24 hours care support would have on her finances etc. Mr C told me that he wanted the advocate and a social worker to be present, so there would be a witness that he had told his aunt that it would be very expensive to continue her care package at the current level. He told me he felt in a vulnerable position, because the funds involved were very large.
82. The Council did not agree to such a meeting because it did not believe its presence was necessary.

Assessment

83. From the information I have seen, the meeting that Mr C wanted was more for his benefit than Ms X’s benefit. All stakeholders, including Ms X, agreed it would be in her best interest to continue with the 24-hour care package. Mr C had a LPA and was therefore authorised by the OPG to make financial decisions on her behalf. There was no requirement for Mr C to update his aunt about the financial implications. However, Mr C was free to do so and did not need the presence of the Council for this.

Complaint 8: Mr C’s complaint about the Council’s attempt to change his aunt’s LPA

84. Mr C received a letter from the OPG in March 2017, in which it asked him to implement several actions. These actions included:
• Setting up a bank account to allow Ms X independence of spending money.
• Access to bank statements for Ms X
85. The letter said that if Mr C was able to do this, the OPG would not have to apply to the CoP to cancel his Power of Attorney.
86. Throughout 2017, the Council became increasingly concerned about issues and concerns raised by Ms X and her carers. The concerns expressed were about:
• Despite the OPG’s instruction and the Council’s requests, Mr C did not set up a separate bank account for Ms X, through which she could access some funds to enable her to go shopping etc whenever she wanted to. Ms X did not want Mr C to buy everything for her but go out shopping herself. Ms X repeatedly said this made her feel like a child.
• Ms X being upset she did not know how much money and savings she had, because she said Mr C did not show her any bank statements etc, despite the OPG’s instruction and requests from the Council to do so.
• Ms X repeatedly said she did not trust Mr C and she was concerned he was spending her money and wanted to take her house.
87. Mr C says:
• It was difficult to set up a bank account in the name of a person who had been assessed as lacking capacity to manage their finances. He was willing to do this but proposed to put a smaller weekly amount into the account, because his aunt was vulnerable to fraud.
• He bought what Ms X needed according to what he knew she liked. He would reimburse carers for shopping and taxis and top up a £100 ‘float’ once a week.
• He did start to show bank statements to his aunt on a monthly basis and would ask her to sign them as evidence.
88. The Council’s mental capacity assessment in May 2017, concluded that Ms X lacked capacity to independently manage all her finances. However, it concluded that she was clear in her wish to change her LPA for finances.
89. The Council says:
• The case notes show Ms X was consistently expressing concerns and frustrations about the way Mr C handled her finances, and a wish to change the LPA arrangements in respect of who managed her property and finance affairs on her behalf.
• It received an email on 21 June 2017 from Mr C’s solicitor to advise that the capacity test that Mr C had commissioned (see paragraph 58) concluded Ms X had capacity to make decisions about her financial affairs.
90. Mr C told me his solicitor informed the Council the following day that Mr C would ask the consultant he commissioned to review the assessment, because he believed it was not carried out appropriately.
91. On 21 June 2017, SW2 visited Ms X to carry out two mental capacity assessments (about visits and about care). At the property, SW2 also met with a solicitor, who had been asked by Mr C’s solicitor to establish if his aunt had capacity to instruct a solicitor to change her LPA for finances:
• According to the solicitor’s record of the meeting, SW2 was present for the first 90 minutes of her meeting with Ms X. The solicitor then asked to speak to Ms X alone and SW2 said she would go home.
• The Council’s record of this meeting said that: the solicitor said she would probably ask Mr C to step down as LPA as she considered Ms X had capacity to make her own decision around finances and management.
• However, the solicitor who carried out the visit provided me with a statement, which said: “she did not believe she expressed an opinion to SW2 about Ms X’s capacity, particularly one which would indicate her having capacity.”
92. SW2 met with Ms X and her advocate on 29 June 2017. The advocate did not express any concerns that Ms X was unable to instruct a solicitor or that changing the LPA would not be in her best interests.
93. Mr C’s solicitor told the Council on 27 July 2017 that the solicitor who had visited Ms X on 21 June, concluded Ms X did not have capacity to provide her with instructions.
94. The Council says that Ms X’s expressed views was that she wanted someone other than Mr C to manage her finances. It found that, whilst she did not have capacity to manage her finances herself, she was capacitated to make this specific decision. As such, the Council says it was assisting a capacitated adult to act on her wishes and feelings.
95. The report said the Council should have given serious consideration to Mr C’s suspicions about the carers and their influence on Ms X, before any decision was made to facilitate Ms X’s access to independent legal advice, including advice about potential changing her will.

Assessment

96. I am unable to come to a view why there is a difference in SW2’s recollection of her meeting with Ms X and the solicitor (as recorded in the Council’s records at the time), and the solicitor’s.
97. I agree with the findings in the report, that the Council should have given serious consideration to Mr C’s suspicions about the carers and their influence on Ms X, before facilitating Ms X’s access to independent legal advice to start the process of changing her LPA and potentially her will. The Council has already acknowledged that it should have carried out a safeguarding investigation around this time.
98. Furthermore, considering the importance of the decision to be made, and the outstanding promise to carry out an independent capacity assessment, the Council should have ensured the independent assessment took place at this crucial point in time.
99. The Council’s failure to consider Mr C’s concerns and to carry out an independent survey, contributed to prolonging the dispute and Mr C’s sense of distress and frustration. However, in light of the lack of any progress in completing the independent capacity assessment, Mr C could have chosen to refer this concern to the CoP.

Complaint 9: Mr C’s complaint about the way in which the Council responded, after he submitted recorded evidence of his aunt’s abuse

100. Mr C left a recording device in his aunt’s house. It recorded one of the carers speaking to Ms X in an abusive manner. The focus of the conversation was on Ms X’s decision not to go ahead with the revocation of the LPA.
101. Mr C passed the recording to the Council on 14 August 2017. However, Mr C says:
• SW2 immediately informed the carer who carried out the alleged abuse. This was a violation of safeguarding protocols.
• The Council failed to put immediate measures in place to safeguard his aunt from any potential further abuse. The other carer was allowed to continue to work and it took until 22 August 2017, before the Council visited Ms X.
102. The Council says:
• It received the recordings on 14 August 2017 and shared this immediately with the Head of Adult Social Care and the legal services department. It also referred the concern on, for a Safeguarding Adults investigation. It decided on 17 August 2017 to invoke safeguarding procedures.
• The Adult Protection Officer wanted to visit Ms X, along with Ms X’s independent advocate, to carry out further investigations. This only happened on 22 August.
• The alert and recordings only related to the behaviour of one of the carers. The second carer was not implicated at all. As such, its view was that Ms X was not in imminent danger of significant harm, with the risk being assessed as moderate. The carer who allegedly carried out the abusive behaviour, did not provide a service to Ms X after 18 August 2017. As the carer was gone, the potential risk had been removed.
103. According to the Council’s adult safeguarding procedure, it is important to respond to any referral immediately and ensure the alleged victim is safe. However, according to the records, the carer continued to work and stay at Ms X’s property for another four days, after the Council had received the alert. The carer did not work anymore for Ms X after 18 August 2017. However, the Council did not know this, until 29 August 2017.
104. Although Mr C had only provided recordings of alleged abusive behaviour by one carer, Mr C had always expressed a concern that both carers were involved. The report concluded that: "Ms X remained at potential risk of psychological abuse whilst the investigation was ongoing", on the basis that the other carer continued to work with Ms X, and the possibility that she may have been implicated in verbally abusive behaviour was not actively considered.
105. Mr C says SW2 told the carer about the recordings Mr C had made of the carer. He says:
• In the recordings he made after 14 August 2017, the carer referred several times to Mr C making recordings. The carer could only have been told about that by the Council.
• In another recording from 23 August, the second carer admitted that SW2 told both carers about the recordings on 14 August.
106. The Council initially denied that SW2 told the carer about the recording. It said this would have been against procedures for dealing with a safeguarding alert, as the potential abuser should not be made aware that an alert has been raised. However, the report concluded that the contents of the audio recording from 15 August 2017, show the accused carer knew Mr C had disclosed recordings to the Council. The Council has told me it has accepted the report’s findings.
107. At the end of August 2017, Mr C changed his aunt’s care arrangements by switching back to the care agency who had provided Ms X’s homecare support until May 2016. The care agency covered the role of the carer who had been recorded. The other carer continued to work for Ms X. After the capacity assessment in October 2017, Mr C made a successful application to become his aunt’s PoA for health and wellbeing.

Assessment

108. I agree with the report that Ms X remained at potential risk of psychological abuse whilst the investigation was ongoing. I have not seen evidence the Council considered whether:
• The alleged abuser should immediately be removed from Ms X’s care, to safeguard her from potential further psychological abuse, while an investigation was carried out.
• The other carer, who had closely worked together with the carer for a long time, may also have been implicated in any psychological abuse.
109. This was fault. The Council has acknowledged that it should not have told the carers about the recordings. This was a serious breach of safeguarding procedures.

Complaint 10: Mr C’s complaint that the Council failed to organise the safeguarding strategy meeting within the five days mentioned in the Council’s policy.

110. The Council told me that it has already acknowledged the strategy meeting did not take place within the five days mentioned in the Council’s Safeguarding Adult’s Policies and Procedures. This was because it took some time to organise a joint visit to Ms X with her advocate. It initially scheduled the meeting for 1 September 2017. However, the meeting only took place on 12 September 2017 to enable the police to attend. The Council acknowledges that:
• It failed to advise Mr C of the delay, for which it would like to apologise.
• Sometimes it is not possible to convene a strategy meeting within five days. However, the Council was actively investigating the concerns in the interim.

Assessment

111. The Council has acknowledged it did not carry out the meeting within five days. It has provided a valid reason for this.
112. The Council has also acknowledged it failed to inform Mr C of the delay, for which it will apologise.

Complaint 11: Mr C’s complained about the minutes of the meeting of the Safeguarding Conference in September 2017

113. Mr C says:
• It took one month and three requests to get a copy of the minutes of the strategy meeting.
• When he received the minutes, he provided the Council with his comments. However, he did not receive an acknowledgement or a copy of the corrected version.
114. The report said that:
• The Council failed to acknowledge and respond to Mr C’s comments on the minutes of the meeting. The Council has accepted the minutes were not accurate and that this element of the complaint should be upheld.
• The Council advised that minutes of strategy meetings are usually only sent to people who specifically request them. However, on reflection, the Council has agreed it may be better if all attendees receive a summary of action points.
115. The Council says that:
• Notes were not shared as they should have been and where amendments were received these were not shared more widely.
• It accepts there were inaccuracies.

Assessment

116. The Council has acknowledged there was fault. The Council should have shared a copy of the draft minutes for comments with relevant participants, acknowledged Mr C’s comments, made any necessary changes and shared the final revised version.

Complaint 12: Mr C’s complaint that the Council should have referred the carers to the Disclosure and Barring Service (DBS)

117. Mr C told the Council that he wanted the Council to refer both carers to the DBS.
118. However, the report said that:
• The Council’s Safeguarding guidance says that: where abuse has been substantiated the lead officer will instruct the employer about informing the DBS of the outcome. The Council said that, in this case, there was only evidence with regards to one carer. As Mr C was the employer, it advised him that he was free to refer the carer himself.
• The Council’s explanation of reasons for the decision not to make a referral to the DBS were procedurally correct. Furthermore, the Council’s decision not to refer, did not prevent Mr C from making a DBS referral if he felt this was appropriate.

Assessment

119. For reasons explained above in the report, I found there was no fault.

Complaint 13: Mr C said the Council failed to tell him about the outcome of its safeguarding investigation

120. The report concluded the Council failed to follow the usual process in terms of informing Mr C of the outcome of its safeguarding investigation.
121. The Council has accepted the findings and agrees it failed to share information in relation to the outcome of the safeguarding process.

Assessment

122. The report and the Council have both upheld this aspect of Mr C’s complaint. I agree with their finding of fault.

Mr C complained that the Council should have reimbursed his legal fees

123. In October 2016, Mr C decided to involve a solicitor. Mr C told me that he felt overwhelmed at the time by his vulnerabilities and responsibilities towards the care and relocation of his aunt. He said this would have been avoided if the Council had listened to his concerns about the carers, who were influencing his aunt and trying to put him under suspicion. He therefore needed help with tackling this.
124. However, the Council says there is no evidence that Mr C raised such concerns in September/October 2016. It says he appointed solicitors of his own volition when there were alternatives courses of action available that would not incur legal costs. It was Mrs C’s personal choice to involve a solicitor.

Assessment

125. The Ombudsman only recommends a reimbursement of legal costs in exceptional circumstances.
126. Mr C employed a Solicitor in September / October 2016. However, there is no evidence that he had been raising concerns about the carers with the Council at the time. As such, the Council did not fail to consider, at that time, that the carers were manipulating Ms X.
127. There were other ways through which Mr C could have dealt with any concerns / complaints, such as the Council’s official complaints procedure (followed by a referral to the Ombudsman if needed) and/or the Court of Protection. Neither of these would have necessitated the involvement of a solicitor. As such, I do not agree that Mr C had no other option in September/October 2016 then to involve a solicitor. I will therefore not recommend that the Council should reimburse his legal fees.

Overall Assessment

128. There are many things that the Council did well, with regards to this case. Whenever an important decision had to be made, it carried out a mental capacity assessment to determine if Ms X had capacity to make this decision. It also spent a lot of time with Ms X to obtain a view about what her wishes were, to determine what was in her best interest.
129. Furthermore, whenever there was a disagreement between the Council and Mr C, it identified the correct steps to try and resolve this:
• In November 2016, it agreed to carry out an independent capacity assessment.
• In February 2017, it agreed to obtain an independent report from a surveyor, to determine what essential work was needed at Ms X’s property
130. However, it failed to carry these two important actions through, despite receiving several reminders from Mr C and his solicitors. This was fault. An independent assessment should certainly have been pursued again, when the Council needed to determine if Ms X had capacity to change her PoA and possibly her will. As mentioned before, while it is not possible to determine what the outcome of this would have been, it certainly resulted in Mr C experiencing distress and frustration, which could have been avoided.
131. Council identified the correct actions to solve issues (independent assessment and independent survey) but failed to implement it in a timely manner. It also failed to respond to / investigate the safeguarding concerns it was receiving from carers, Ms X and Mr C. Mr C was asking in June / July also for a meeting to discuss the concerns and allegations made about him.
132. During 2017, the Council failed to be sufficiently open to the possibility that (at least part of) the concerns Mr C was raising about the carers may be true. Ms X was in a very vulnerable position, so concerns raised about the carers trying to influence Ms X should have been looked at and taken seriously. The Council has acknowledged it should have carried out a safeguarding investigation in 2017 with regards to the concerns raised by, and against, Mr C. This would have given Mr C some assurance that the Council were also listening to him. It is clear that the failure by the Council to respond to Mr C’s concerns was distressing and frustrating to him.
133. I also have to take into consideration that Mr C was advised, on several occasions, that if he disagreed with the outcome of the Council’s capacity assessments, or was unhappy about decisions that were made by or on behalf of his aunt, he could have this to the court of protection at any time during 2017.

Agreed action

134. I recommend that the Council, within four weeks of my decision, should:
• Provide an apology to Ms C for any faults it has not previously already apologised for. It should also pay him £500 for the distress he suffered as a result of the Council’s faults.
• Share the findings and lessons learned above with staff from adult social care and the safeguarding team.
135. The Council has told me that it has accepted my recommendations.

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Final decision

136. For reasons explained above, there was fault with the actions of the Council. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman