Summary: Mr X complains the Council did not tell him about its plans to apply to be a deputy for his mother’s financial and property affairs. He also complains the Council mismanaged his mother’s finances and did not involve him in the decision regarding his mother’s funeral plan. We find fault with the Council for not contacting Mr X before the best interest meeting to decide on his mother’s funeral plan. We do not find fault with the Council’s other actions.

The complaint

1. Mr X complains the Council did not tell him about its plans to apply to the Court of Protection to be deputy for his mother’s financial and property affairs. He says the Council spoke with him in July 2016 but did not tell him it had already begun the process. Mr X also complains about the Council’s actions when it was a court appointed deputy for his mother. He complains:
• The Council mismanaged his mother’s finances.
• The Council arranged a funeral plan for a cremation when his mother wanted to be buried. Mr X says the Council did not involve him in this decision.

Mr X says the Council’s actions caused him distress and stress as he had to rearrange his mother’s funeral.

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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. 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)
4. 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

5. I spoke with Mr X and considered the information he provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent a draft decision to Mr X and the Council and considered their comments.

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What I found

Legislation and guidance

8. 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 Mental Capacity code of practice provides further guidance on the application of the Act.
9. The code of practice notes the act places a duty on the decision-maker to consult other people close to a person who lacks capacity, where practical and appropriate, on decisions affecting the person and what might be in the person’s best interest. The decision maker has a duty to take into account the views of the following people, where it is practical and appropriate to do so:
• anyone the person has previously named as someone they want to be consulted;
• anyone involved in caring for the person;
• anyone interested in their welfare (for example, family carers, other close relatives, or an advocate already working with the person);
• an attorney appointed by the person under a lasting power of attorney; and
• a deputy appointed for that person by the Court of Protection.
10. Decision makers must show they have thought carefully about who to speak to. If it is practical and appropriate to speak to the above people, they must do so and must take their views into account. They must be able to explain why they did not speak to a particular person and it is good practice to have a clear record of their reasons.
11. The Office of the Public Guardian published deputy standards for professional deputies. The standards set out what is expected of professional and public authority deputies. It provides a checklist of actions and behaviours every deputy should follow.
12. Standard 1 is about securing the client’s finances and assets. It sets out that deputies should ensure scrutiny of, and where appropriate, payment of any liabilities by the client. It also notes deputies should carry out a review of savings and investment portfolios at least once a year, and demonstrate responsible use of assets, rather than asset preservation.

Council policy

13. The Council has its own policy regarding when to apply to the Court of Protection. It highlights that where a person loses mental capacity, and they have income, savings or assets over and above state pension/benefits, then someone will need to apply to the Court of Protection to become Property and Affairs Deputy and act on their behalf.
14. The policy notes the ideal person to do this is a close family member or friend. If there is no-one willing or able, then the Council will take on the role.
15. If the Council decides nobody else is able, willing, and appropriate to act as Deputy for the client, the Council will consider applying for deputyship.

What happened

16. Mr X’s mother, Mrs Y, lived in a care home. Mr X did not live near to Mrs Y. Mrs Y has another son, who also does not live near to her.
17. Between January and February 2016, the Council tried to contact Mr X about Mrs Y’s financial assessment. The Council needed information about Mrs Y’s savings. The records also noted Mrs Y’s care home had not had any contact with Mr X and that he had not contacted his mother or visited her.
18. Mr X said he did visit Mrs Y and often spoke with her on the phone. He said his mother started to become anxious when he called so he felt his phone calls were not helping her.
19. In March 2016, the Council started the process for applying for deputyship for property and finance for Mrs Y.
20. In July 2016, the Council made a best interest decision regarding Mrs Y’s accommodation. Mrs Y had originally lived in a supported living development. When the facility closed in 2014, Mrs Y was moved to a residential home temporarily while Mr X searched for a care home near to him. Mrs Y requested she remain in the care home permanently when she had capacity to make that decision.
21. The best interest record highlighted Mr X had been supportive of Mrs Y’s decision to stay in the care home. The record also noted the Council had not been able to contact Mr X on the phone to consult with him regarding his view.
22. Mr X said he had telephone contact with the Council in July 2016. He said the Council did not tell him it had started the process of applying for deputyship. Mr X said he agreed someone needed to look after his mother’s best interest as he did not live nearby. The Council’s record do not show any attempt to contact Mr X was made in July 2016.
23. The Council applied for, and was granted, deputyship in August 2016.
24. In July 2018, the Council completed a mental capacity assessment for Mrs Y about whether she could make a decision about a funeral plan. The Council determined Mrs Y lacked the capacity to make an informed decision.
25. The Council held a best interest decision meeting to make the decision on her behalf. The Council decided it was in Mrs Y’s best interest for a simple cremation funeral plan to arranged. The record of the best interest meeting noted Mrs Y had two sons who did not visit or have regular contact with her.
26. The Council did not invite Mr X to the best interest decision. The Council also did not contact Mr X before the best interest meeting to gather his views.
27. In response to our enquiries, the Council explained it did not contact Mr X before the best interest meeting because it did not consider him to be involved in Mrs Y’s care. The Council said, due to Mr X’s limited and sporadic contact with Mrs Y, it did not feel his relationship fit within the criteria of a person who should be consulted when working out someone’s best interests. There is no evidence the Council recorded this rationale at the time the best interest decision was made.
28. The records showed Mr X contacted the Council at the end of May to discuss Mrs Y’s funeral arrangements. Mr X told the Council the funeral plan did not reflect the family’s wishes for Mrs Y to be buried and was making arrangements with a funeral director to arrange this.
29. The Council provided evidence of the accounts kept for Mrs Y and the yearly reports submitted to the Office of the Public Guardian. The Council kept accounts from 2014 until May 2019, when Mrs Y died.
30. The accounts showed the money paid into, and out of, Mrs Y’s account. For money paid out of Mrs Y’s account, there was a clear record about what the payment was for.
31. Mr X said the Council had mismanaged his mother’s finances because it made a large payment to the care home to pay for Mrs Y’s personal expenses. The Council has provided a copy of the accounts kept by the care home about Mrs Y’s expenses while at the care home.
32. The accounts showed Mrs Y’s expenses were mainly for hairdressing, toiletries, and a chiropodist.

Analysis

Deputyship application

33. The evidence shows the Council had tried unsuccessfully to contact Mr X several times between January and February 2016.
34. As the Council could not get the financial information from Mr X needed to complete Mrs Y’s financial assessment, the Council started applying for deputyship. I consider this action to be in line with its policy as the evidence suggests there was no close family or friend who was willing and able to apply for deputyship.
35. Mr X said the Council had contacted him in July 2016. However, the Council’s records do not show any attempt to contact Mr X after February 2016.
36. On balance, I am of the view the Council did not try and contact Mr X after February 2016. Therefore, this suggests the Council did not try to contact Mr X to tell him about its intention to apply for deputyship.
37. There is no statutory requirement for the Council to inform family members about its intention to apply for deputyship. While I do consider it would have been good practice for the Council to have done so, I do not consider this amounts to fault in this case. This is because the evidence shows the Council had previously tried to contact Mr X without success.

Management of finances

38. There is no evidence to suggest the Council mismanaged Mrs Y’s finances. The Council has kept clear accounts of Mrs Y’s finances and kept a record of money paid in and out of her account. This is in line with the code of practice for professional deputies.
39. I note Mr X was concerned about a large payment made to the care home. However, the records showed this was to repay the care home for Mrs Y’s expenses. The care home had kept an itemised list of the expenses incurred. As Mrs Y was entitled to spend her money the way she wanted, there is no fault with the Council for making the payment to the care home.

Funeral plan: best interest decision

40. The evidence shows the Council did not contact Mr X to get his views before the best interest meeting held in July 2018. There is also no evidence the Council invited Mr X to the best interest meeting.
41. The Council said it did not contact Mr X before the best interest meeting because it did not consider him to be involved in Mrs Y’s care. The Council said his relationship with Mrs Y did not fit within the criteria of someone who should be consulted when working out a person’s best interest.
42. The Mental Capacity Act code of practice places a duty on the decision-maker to consider the view of anyone interested in the person’s welfare, such as close family. The code of practice also notes decision makers must show they have thought carefully about who to speak to and explain why they did not speak to a particular person. It notes it is good practice to have a clear record of their reasons.
43. There is no evidence the Council recorded its decision making at the time it decided to hold a best interest meeting. I recognise the evidence does support the Council’s position that Mr X’s engagement with Mrs Y was limited. However, it should have recorded its reasons for not contacting Mr X to seek his views about the funeral plan. As no rationale was recorded at the time, this suggests the Council did not properly consider whether it should consult with Mr X. This is fault.
44. Mr X said the Council’s actions meant the family’s wishes were not considered when the best interest decision was made, and he had to rearrange his mother’s funeral. I note the records showed Mr X did not give the Council an opportunity to rearrange the funeral. This is because when he contacted the Council, he already advised he was arranging for Mrs Y to be buried. However, I consider the fault did cause Mr X some distress and inconvenience as he had to rearrange his mother’s funeral.

Agreed action

45. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following:
• Apologise to Mr X for failing to contact him before the best interest decision.
• Pay Mr X £100 to recognise the distress and inconvenience caused.
• Remind staff about the importance of recording decisions regarding who to speak to during best interest decisions. If the Council decides not to speak to a particular person, the Council should ensure it has a clear record of its reasons at the time.
46. The Council should complete the above remedy within four weeks of the final decision.

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Final decision

47. I find fault with the Council for not contacting Mr X before the best interest meeting in July 2018. I do not find fault with the Council’s other actions. 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