Summary: The Council was not at fault for deciding Mr C had capacity to manage his own finances in early 2019. However, it was at fault for failing to properly record the date of his capacity assessment, for a delay in relinquishing control of his bank account after deciding he had capacity, and for failing to arrange further support in November 2019. It has agreed to apologise, to set out a plan for supporting Mr C, and to make payments totalling £550 to recognise the injustice of
Mr C and his mother, who made the complaint on his behalf.

The complaint

1. The complainant, whom I refer to as Mrs B, complains on behalf of her son, who is an adult with a learning disability. I refer to her son as Mr C.
2. From 2013 until 2019, the Council was registered as Mr C’s appointee, which meant it managed the bank account into which his benefits were paid. Mrs B complains that the Council decided, in early 2019, that Mr C had the capacity to manage his own finances, and relinquished its appointeeship.
3. Mrs B says Mr C has never had the capacity to manage his finances, including in early 2019, and if he had then he would not have needed support from the Council in the first place. She says this is evidenced by the Council needing to provide further support to Mr C later in 2019 when he ran out of money.
4. The Council reports that Mrs B was present at the capacity assessment meeting in early 2019, agreed with the social worker’s assessment, and agreed to support Mr C to manage his money. It also says it offered to support Mr C, but its offer was refused, as Mrs B intended to provide the support he needed. Mrs B denies all of this, and says she never agreed Mr C had capacity or that he needed no support from the Council.
5. Mrs B says the Council never confirmed its decision to end its appointeeship in writing, so she did not know it was going to happen until it was too late.

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The Ombudsman’s role and powers

6. 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)
7. 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 decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. 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

9. I considered information from Mrs B and the Council. Both parties had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened?

The Council’s guidance on capacity testing

10. The Council can conduct an assessment to find out whether someone has the capacity to make a particular decision (including financial) at a particular time.
11. The Council, when conducting capacity assessments, will act in accordance with the five statutory principles set out in the Mental Capacity Act 2005. Two of these principles are that a person should not be treated as unable to make a decision:
• unless all practicable steps to help them to do so have been taken without success; or
• merely because they make an unwise decision.
12. The Council uses an assessment form which sets out its decision-making in line with the two-stage test set out in the Mental Capacity Act code of practice:
• Stage 1: Does the person have an impairment of, or a disturbance in the functioning of their mind or brain?
• Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?

The Council’s financial support manual (pre-June 2019)

13. The Council’s financial support team can only help people who have been assessed as not having the mental capacity to deal with their own finances.

What happened?

14. In 2012 the Council became Mr C’s appointee, taking over the role from Mrs B. It did this because Mrs B reported that Mr C could not manage his own finances, and she did not feel able to manage them for him.
15. In August 2018 a social worker told the Council’s DAT that Mr C appeared to have the capacity to manage his own finances. However, this view was not based on a capacity assessment, and the Council took no further action.
16. In November 2018 the Council reviewed Mr C’s care and support plan. The review document reiterated that Mr C was “unable to manage his finances independently and is at risk of financial exploitation”. The updated care plan confirmed that the Council would continue its role in managing Mr C’s finances.
17. In January 2019 the Council’s DAT reported to Mr C’s social worker that he was spending his money at a much faster rate than he earned it, and if he continued at the same rate he would have spent his savings (which at that point were at around £5,500) by the end of the year. It also said it had heard nothing since August 2018 about Mr C’s capacity to manage his own finances. It asked for a capacity assessment to be completed.
18. The Council spoke to Mr C and told him his outgoings were exceeding his income. It told him that, for this reason, it could not give him any extra money until his holiday later that year.
19. In February 2019 it appears that the Council reviewed Mr C’s care and support plan again, and conducted a capacity assessment (the Council’s records say the assessment was conducted on either 12 or 26 February, although they also refer to it being completed in June). The assessor decided Mr C had the capacity to manage his own finances, and she recorded the reasons for her decision in the assessment document.
20. The Council’s records refer to Mrs B being present at the capacity assessment, agreeing with the outcome, and offering her support with Mr C’s finances when the Council’s DAT stopped supporting him. Mrs B denies all of this.
21. The Council says it offered Mr C further support with the transition to managing his own finances, but he and Mrs B refused this offer. Mrs B, again, denies this.
22. The Council also says that, although it did not write to Mrs B to confirm that it would end its appointeeship or when this would happen, she was involved in the review process, so she knew the Council’s support would end.
23. After February the Council’s records show that it provided spending money to
    Mr C when he asked for it.
24. In July 2019 Mr C’s benefits were stopped after he went on holiday abroad. At this point the Council was still registered as his appointee. It decided that, as it was intending to relinquish its appointeeship anyway after the capacity assessment, Mr C should make his own new claim for universal credit and it would begin shutting down his account. Mr C had almost £800 in his account.
25. In mid-July the Council allocated someone to help Mr C with his universal credit claim, and ended its appointeeship. Mr C’s account was closed with £6.94 in it, which the Council transferred to him in September.
26. In November, after Mrs B complained about the Council’s decision to relinquish its appointeeship, it completed another capacity test. This time it decided Mr C did not, in fact, have the capacity to manage his own finances. However, the Council’s case notes say Mr C appeared to have been ‘coached’ beforehand and his answers seemed pre-prepared.
27. The assessor recommended Mr C receive education to help him gain the capacity to manage his own finances in future. The Council emailed Mrs B, saying:

… one of the statutory principles [of the Mental Capacity Act] recommends that someone can be supported to learn new skills in order to help them with their capacity. As such it is recommended that [Mr C] would benefit from some education around finances, benefits and budgeting in order to see if this will enhance his skills in this area and ultimately regain capacity.

28. The Council says it intended to provide this education, but did not do so because Mrs B and Mr C did not accept its offer of help.
29. However, the records provided by the Council show that, when it asked Mrs B if Mr C consented to it providing him with education, she said, “… if you think this will help [Mr C] by all means you may go ahead with this but personally I don't think this will help him regain capacity”.
30. Mrs B also emailed the Council in late December 2019, saying she had not heard anything about the proposed educational support.
31. Mrs B says the Council is yet to deliver this support to Mr C.

Analysis

32. Although a central part of Mrs B’s complaint is that she was not present at the capacity assessment in February 2019, the Council’s records clearly say she was there, that she agreed with the assessment, and that she agreed to support Mr C in future.
33. However, the Council’s records are not clear about when this assessment took place. Mr C’s case notes and his care and support review document say it was on 12 February, the assessment document itself says it was on 26 February, and a later case note says it was completed on 14 June.
34. I do not have clear evidence to say that the capacity assessment meeting did not take place at all, or that Mrs B was definitely not there. However, because of the inconsistent recording, I am still unsure of the date the assessment took place. This was fault by the Council, and may well have contributed to Mrs B’s uncertainty about when the meeting was held and whether she was there.
35. Although the date of the assessment is unclear, the assessment record itself is detailed and fully explains the reason why, in the view of the assessor, Mr C had the capacity to manage his own finances. And the assessment appears to have been conducted in line with the Council’s guidance.
36. Because of this, I am not in a position to question the findings of the assessment, or to claim that the Council should have made a different decision at the time.
37. Although the Council changed its mind in November 2019, there was clearly some professional uncertainty at the time. In fact, the assessor felt that, with support, Mr C could learn to manage his finances in future.
38. This means that, although November’s capacity decision was different to February’s, the difference was not dramatic enough to suggest that the February decision was wrong.
39. However, the evidence I have seen strongly suggests that, although in November 2019 the Council identified a way to help Mr C gain capacity (in line with one of the statutory principles of the Mental Capacity Act), it never delivered the support.
40. The Council says it offered to provide this, but its offer was not taken up. But the records do not support this view. I have seen nothing suggesting Mrs B or Mr C refused the proposed support, and I have seen no evidence of efforts by the Council to deliver it.
41. This was further fault by the Council.
42. The Council says Mrs B was aware that its appointeeship would end, because she was at the capacity assessment meeting. This may well have been the case, and, as I have said above, I do not have grounds to say otherwise. However, there was a period of five months between the capacity assessment (which appears to have taken place sometime in February 2019) and when the Council actually began relinquishing its appointeeship in July.
43. This meant there were five months in which the Council was in charge of a bank account for Mr C, but – because of the capacity assessment in February 2019 – it was not making any financial decisions on his behalf. Over this period Mr C’s savings were depleted from around £5,000 to almost nothing. Although this was mostly because of a loss of benefits, it was also partly because of Mr C’s spending, as the Council’s DAT had identified in January 2019.
44. Given that the Council had decided Mr C had capacity, its own guidance says its DAT had no role in managing his finances. Because of this, the Council was not at fault when it did not restrict his spending after February 2019. If someone has mental capacity, this includes the capacity to make unwise decisions.
45. However, as the DAT had no role once the Council decided Mr C had capacity, it should have taken steps to end its involvement without delay. It appears that these steps were not taken for five months. This was fault by the Council.
46. It is possible that the Council’s continued administration of Mr C’s bank account during that five-month period gave the impression to Mrs B and Mr C that it was still exerting control over Mr C’s financial decisions. This could explain Mrs B’s reaction when she discovered (in August 2019) that Mr C had no money left. If the Council had acted without delay following the capacity assessment in February 2019, Mrs B and Mr C would have been unquestionably aware that Mr C was making his own financial decisions well before his savings were gone.
47. I do not consider the Council responsible for Mr C spending his savings, but it should provide a remedy to recognise the uncertainty caused by the delay.

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Agreed actions

48. The Council has agreed to apologise to Mr C for its failure to properly record the date of his capacity assessment, for the delay in relinquishing its appointeeship after deciding he had capacity to manage his own finances, and for the failure to arrange further support after proposing it in November 2019.
49. In its apology letter, the Council has agreed to also set out a plan to provide the education proposed by its capacity assessor in November 2019. It has agreed to send a copy of this letter to Mrs B.
50. The Council has agreed to make a payment of £400 to Mr C to recognise the uncertainty and distress caused by its failures.
51. The Council has also agreed to make a separate payment of £150 to Mrs B to recognise the time and trouble she took in pursuing her complaint.
52. These actions should be completed within six weeks of this decision.

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Final decision

53. The Council was not at fault for deciding Mr C had capacity to manage his own finances in early 2019. However, it was at fault for failing to properly record the date of Mr C’s capacity assessment, for a delay in relinquishing control of his bank account after deciding he had capacity, and for failing to arrange further support in November 2019. The agreed actions remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman