Summary: Ms X complained about the way in which the Council has dealt with her mother’s financial assessment since 2017. We found there were avoidable delays and the Council failed to try and include Ms M in the safeguarding enquiry. The Council has offered to apologise for this and pay a financial remedy to Ms X for any distress she experienced. We found this to be an appropriate remedy.

The complaint

1. The complainant, whom I shall call Ms X, complained about the way the Council has carried out her mother’s financial assessments since 2017. Ms X complained there were delays, the calculations were incorrect, and the Council failed to explain things.
2. Ms X also complained about the way the Council responded to its concern that she had financially abused her mother.
3. Ms X said the Council has acknowledged there has been fault but failed to properly assess the impact the above faults (and false allegations) had on her and her mother.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
7. If we are satisfied with an organisation’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

8. I considered the information I received from Ms X and the Council and carried out two interviews with Council officers. I shared a copy of my draft decision statement with Ms X and the Council and considered any comments I received, before I made my final decision.

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What I found

The financial assessment in 2017

9. Ms X has said:
• There was an unreasonable delay by the Council in 2017 in carrying out a financial assessment.
• The Council told Ms X that her mother owed £9,000 but failed to explain how it had calculated this figure.
10. Ms X was handling her mother’s finances in 2017. The records show that Ms X called the Council in March 2017 advising that her mother’s capital was reducing to the £23,250 threshold. When a person’s capital reduces below £23,250, they become eligible for the Council to pay towards the cost of their eligible care and support needs (in this case care home). Ms X said she had sold her mother’s house and paid her care home fees up until 19 March 2017. Ms X told me she specified to the Council that if she would pay a further month, her mother’s capital would be under the threshold. Ms X told me that, as such, she decided to stop paying further contributions to the care home after March 2017, whilst awaiting the outcome of the Council’s financial assessment.
11. The Council has acknowledged there was a delay of 21 weeks. It responded to Ms X’s contact by carrying out a needs assessment of her mother in July 2017. It then took until 16 August to agree it would contribute towards the cost of Ms M’s care home placement. However, to calculate how much it would contribute, it had to carry out a financial assessment.
12. The Council says it sent a copy of the financial assessment forms to Ms M on 21 August 2017, in which it asked to complete and return them. However, it only received the completed forms mid-December 2021, almost four months later. Ms X told me she did not receive the forms in August 2017, but only in December. The Council has provided me with a copy of the letter it sent in August 2017.
13. The Council also showed me a letter dated 16 January 2018 in which it explained to Ms X and her mother that it would financially support Ms M’s placement from 12 April 2017 onwards. The letter explained how it had calculated this date and attached a copy of the calculation sheet that showed how it arrived at these figures. The Council said it also sent Ms X a “Threshold notification letter” and financial assessment breakdown summaries on 17 January 2018. Ms X told me she did not receive either of the letters. She also said the Council did not show her a copy of these when she made a complaint. However, the Council has provided me with a copy of the letters and assured me again at the interviews that it sent them.
14. Due to the delays referred to in paragraph 11 and 12, it took until January 2018 before the Council informed Ms X in writing how much her mother would have to pay every week from April 2017 onwards. As such, as she had not been able to pay these contributions until January 2018, a debt had built up for Ms X’s mother of £9,000 (her weekly contributions from April 2017 until January 2018).

Analysis

15. The Council has acknowledged it was at fault for part of the delay (21 weeks) between March 2017 and January 2018, for which it should apologise. However, it has said it was not at fault for the delay between mid-August 2017 and mid-January 2018. It also said it did explain to Ms X how it had calculated her mother’s contribution and outstanding debt, by sending her two letters in January 2018. I agree with the Council’s view. There is insufficient evidence to conclude it did not send the letters in August 2017 and January 2018. The Council has acknowledged it should have provided Ms X a copy of the January 2018 letters, as part of its response to Ms X’s complaint in 2019.

The reason why the Council carried out a safeguarding investigation

16. Ms X had several bank accounts, some of which were joint accounts with her mother. Once the Council had told Ms X about her mother’s contribution, she did not start to pay this in 2018. Ms X also did not start to repay her mother’s outstanding care home fees from 2017. As a result, her mother’s debt increased to £17,000+ during 2018.
17. Ms X says she did not start to pay any fees, because:
• She did not agree with the Council’s to only start contributing from mid-April 2017 onwards.
• Her mother had told her she did not want any further money from her property proceeds or pensions paid for her care until the Council provided a breakdown of their calculations.
18. In response, the Council said that:
• It sent regular invoices to an appropriate address and changed the address in July 2018 after a request from Ms X. The invoices throughout 2018 clearly showed the period being invoiced and the weekly client contribution amount Ms M would have to pay.
• Ms X did not provide any indication to the Council during 2018 that she had not received the relevant correspondence. There is no evidence to support her view that she repeatedly asked the Council, during 2018, to receive a breakdown of the way in which the Council carried out these calculations. There was no need for this, as she had already received this in January 2018.
• On the contrary she said in July 2018 that she would start to pay her mother’s contribution and repay the debt. However, despite subsequent reminders and assurances, she did not do this, and the debt increased to £17,800 by October 2018.
• As such, the Council became increasingly concerned about Ms M’s finances, the way Ms X handled these, and if she was acting in her mother’s best interests. The Council told Ms X on 19 October that, based on the debt she had been allowing to accrue, she was not acting in her mother’s best interests or trying to resolve the matter. It said it would as such have to refer the case to its safeguarding hub. At the end of November 2018, Ms X had still not provided the information the Council needed or started to make payments. As such, it raised a safeguarding concern, as there was a risk of financial abuse with debt accruing, financial mismanagement, a previously agreed payment plan not being followed etc.
• Ms X only started to challenge the financial assessment in March 2019 when the Council had started safeguarding procedures against her.
19. Ms X mentioned the £5,400 payment to the care home in mid-2018 and the Council asked for evidence. It also asked for copies of bank statements. However, Ms X did not provide this. The Council says there was a lack of engagement by Ms X during 2018 and a resistance to provide information and responses to the Council in a timely and comprehensive manner.
20. Ms X says:
• She did not receive any invoices during 2018.
• She asked the Council why it decided to only fund her mother’s placement from April 2017 and to check its calculations. She said her mother had told her not to pay anything until she had received the information she asked for.
• She repeatedly asked the Council to reflect the £5,400 payment she made to the care home in June 2018, within its calculations.
• She could not provide a copy of the bank statements in December 2018, because the banks had stopped her access to the (joint) bank accounts, after the Council had contacted her bank.
• She told the Council she could pay the debt off once she had agreed a financial settlement for her divorce.
21. Ms X says the Council also made an error in its calculations, because it included Attendance Allowance, which her mother was not receiving. In response, the Council said that Ms X’s financial assessment form said her mother was in receipt of Attendance Allowance. Her mother was entitled to claim Attendance Allowance up until 12 April 2017 (the threshold date) and 28 days following this. As such, the Council no longer included the Attendance Allowance from 11 May 2017 onwards. This was mentioned in the letter in January 2018.
22. The Council says it first contacted the banks involved in February 2019 and provided records to me of the call.

Analysis

23. It is up to the Council to decide whether concerns meet the threshold and criteria of potential financial abuse, which means it has to refer those concerns to its safeguarding team to start an enquiry. The information I have seen shows the Council considered all the information available, which included that:
• Ms X did not use her mother’s funds to start paying anything towards her mother’s weekly care home fees, which were not in dispute, or her mother’s debt, resulting in the debt increasing to £17,000+.
• She did not provide a copy of bank statements the Council asked for in October 2018. Ms X had enough time to provide these. I have not seen evidence to support Ms X’s statement that: the Council had contacted her banks as of December 2018 and that as such she was not able to provide any bank statements that month.
• I have also not seen evidence in the records that Ms X told the Council in 2018 that she was not paying any contributions until she had received specific information or because her mother had told her.

The way the Council investigated the potential financial abuse

24. Ms X complained about the way the Council looked into the concern that she was financially abusing her mother. She said:
• The Council should have first:
1. Established if her mother had capacity to make financial decisions. It only did this in December 2019. If her mother had capacity, it should have asked her about her wishes with regards to her finances and the payment of her care home fees / contributions etc. This would have avoided any subsequent suspicions of financial abuse and avoided the need to go to the Court of Protection (CoP).
2. Established if her mother had capacity to decide whether she wanted a safeguarding investigation and if she could be involved in that (with support from an advocate).
3. Asked for a copy of relevant bank statements to assess if there were any transactions etc that appeared suspicious / concerning.
• The Council should not have contacted the banks involved. As a result, the banks froze access to the accounts, which meant:
1. She could not access her mother’s funds to pay for any care home fees.
2. She could not access some of her own money. Because the banks had out a ‘fraud marker’ in place, she often had to provide additional information and effort to make transfers.
3. She could not provide the bank statements the Council needed to look into the allegation of financial abuse (and conclude she was innocent) or carry out a financial reassessment of her mother.
• The Council was wrong to tell her she (Ms X) would have to pay her mother’s debt.
25. The agreed plan of action for the safeguarding enquiry was to:
• Ask the Office of Public Guardian if Ms M had any legal representatives.
• Visit Ms M to establish if she can make her own decisions about finances and the safeguarding investigation. If Ms M can make decision, then discuss the risks of an unwise decision with her. If she can't make decisions, decisions will have to be made in her best interests and the Council will speak to her bank to find out what is in place to allow Ms X to legally manage her mother’s money.
• To consider appointment of an advocate to support Ms M. 
26. The Council:
• Contacted the OPG in January 2019, who confirmed the same month that Ms X was not her mother’s legal financial representative.
• It carried out two visits to Ms M in January 2019 to carry out a mental capacity assessment. It concluded that Ms M did not have capacity to manage her own finances. However, this did not result in an official recorded assessment report.
• It called the DWP in January 2019 to report potential Benefit Fraud, due to Ms X not paying her mother’s care home fees.
• It called both of Ms M’s banks in February 2019 to tell them it had reasons to believe that Ms X was accessing and spending her mother’s money.
27. Ms X said:
• The Council asked her to pay her mother’s care home fees during 2019. However, as her mother’s bank account had been frozen, this could only be paid by Ms X herself from her own account.
• One of the banks acknowledged in March 2019 that it should not have frozen her (Ms X’s) personal account and it made this accessible again to her. She paid £20,000 from her own account to the Council on 31 March 2019.
• However, the Council failed to tell the DWP and the banks subsequently in March 2019, that she had settled the debt. If it had done this, the banks would have unfrozen all the accounts and they could have lifted the ‘fraud marker’ against her as early as March 2019. This could have prevented three additional years of distress with the banks.
28. In response, the Council said that:
• The decision to pursue a safeguarding enquiry and to apply to the Court of Protection for a Deputy to be appointed were the correct decisions to make in the circumstances and in line with the professionals involved statutory duties (Care Act 2014).
• When carrying out a safeguarding enquiry, it is important to safeguard the alleged victim from potential further abuse (during the course of the enquiry). As such, it was correct to inform the DWP and the banks. It is subsequently up to the banks to decide what they will do (freeze an account, put a ‘fraud marker’ in place etc) and if / how they will investigate any concerns from their side.
• The fact the Council did not tell the DWP and banks in April 2019 that Ms X had paid £20,000 was not fault. This was only part of the total debt that was outstanding. Furthermore, the Council had not yet been able to investigate and determine if Ms X had (not) mismanaged her mother’s finances. As such, it could not tell these stakeholders at that time, that it had no longer any concerns.
• The Council was not able to ask the banks for copies of statements during this time. As such, it was not able to investigate the safeguarding concern until the CoP had appointed a Deputy at the end of 2021 (Ms X’s son) and the banks allowed him to access these statements.
• However, there was a delay of four months explaining to Ms X why it had made a safeguarding referral and what would happen. The Council said it would explore with the Head of Financial Operations and the appropriate Head of Service for the social work team to agree how it would take this learning forward with support from the Quality Assurance and Practice Team.
• After the Council identified that Ms X did not have a registered Power of Attorney to deal with her mother’s finances, it should not have continued to send bills to Ms X for the outstanding debt and care contributions. In May 2021 it refunded the £20,000 she paid to the Council on 1 April 2019.
• It failed to engage appropriately with Ms M to consider her wishes and carry out a proper Mental Capacity Assessment about her ability to make decisions about the safeguarding process.
• It also failed to refer Ms M to an advocacy service to ensure she was supported throughout the investigation. There was fault, as the Council did not try enough to involve Ms M in the safeguarding process as much as possible.

Analysis

29. The Council has acknowledged that:
• It failed to assess if Ms M had capacity to be involved in the safeguarding investigation. It also failed to arrange advocacy support for her.
• It should not have pursued Ms X during 2019 with regards to the payment of her mother’s care home fees and debt. It has apologised for this and repaid the £20,000 to Ms X.
• It failed to keep Ms X informed of the safeguarding process, and what would happen, in a timely manner. It has apologised for this.
30. However:
• The Council did ask Ms X for a copy of bank statements before it made a safeguarding referral. However, Ms X did not provide these to the Council.
• There was no fault by the Council with regards to its decision to contact the DWP and banks in February 2019, and not contacting them in April 2019 after Ms X had paid most of the outstanding debt.

The alleged delay in the CoP process:

31. Ms X said she was also unhappy about the way the Council dealt with the CoP process. She said that:
• There was an unreasonable delay in making an application to the CoP in 2019.
• There were errors in the application to the court and subsequent information provided to the court. The Council failed to include her as an interested party in the final application to the CoP, even though she is the only child and recognised next-of-kin of her mother.
32. The Council established in early 2019 that:
• Ms M did not have capacity to make decisions on her behalf
• There was no CoP appointed deputy in place to make financial decisions on her behalf.
• Ms X and Ms M did no longer have access to Ms M’s bank accounts, to pay for care home fees and daily bills (hairdresser etc), because the banks had frozen Ms M’s bank accounts.
33. This meant it would be in Ms M’s best interest to:
• Apply to the DWP to transfer her pension to (an account to be set up by) the Council
• Apply to the CoP to appoint a deputy to access her bank accounts and manage her finances.
34. However, there was an unreasonable delay in setting this up with the DWP. The Council told me it started to pay Ms M’s weekly Personal Expense Allowance (PEA) of £30,65 a week, from January 2020 onwards. The PEA is the weekly amount that people receive in a care home, when funded by a council, to pay for their personal expenses such as paying for hairdresser, newspaper etc. From this time, it was always in contact with the care home to ensure that Ms M had enough money in her personal care home account to enable the care home to pay for her weekly expenses. The DWP started to transfer Ms M’s pension into an account set up by the Council, from May 2020 onwards. The Council said it used money in the account to pay for Ms M’s PEA expenses. It charges £10 a week for such a Corporate Appointeeship Service. By the time the CoP appointed a deputy at the end of 2021, the balance in this account had increased to £9,000.
35. There was also an unreasonable delay in referring Ms M’s case to the CoP. It only made an application to the CoP in April 2020.
36. The Council has acknowledged it failed to initially list Ms X as an “Interested Party” when it made an application to the CoP. It only did this when the CoP told them in October 2020. The Council said this happened because the application was done by an inexperienced social worker. Since then, there is more supervision in place and checks before an application goes out. The CoP appointed Ms X’s son as Deputy for Ms M’s property and financial affairs at the end of November 2021.
37. The Council says that, since then, it has worked with the Deputy to obtain all the bank statements it needs. It says it has now received the necessary information from Ms M's Deputy and are working with the Deputy to address outstanding queries.  
38. The Council also told me that, once it has all the information needed, and the outcome is that Ms X did not financially abuse her mother, it will inform the deputy in writing. The deputy can then determine if he wants to inform the banks accordingly.
39. The Council has said that:
• The safeguarding process, including the application to the Court of Protection, took a regrettably long period of time. This had a negative impact on Ms X.
• There was a delay in making the COP application. We knew in January 2019 there was no registered legal arrangement in place for supporting Ms M. However, it took until January 2020 before the forms were submitted to the Courts.
• There has also been a series of errors in the paperwork submitted to the courts which have caused further delays in an already delayed process. There were also delays due to (a backlog at) the CoP.
• The Financial Assessment Team are in contact with the court appointed deputy. The information requested by the Financial Assessment Team has since been provided by the Deputy. The Council no longer has an ongoing Safeguarding concern since the Court Appointed a Deputy in November 2021.
• It is directing the remaining queries regarding deprivation or misuse of funds in relation to the original safeguarding concern to the Deputy. The outcomes of those queries will be reflected in the normal Financial Assessment process.
• The Council takes any failings in the case very seriously and will be working with those teams to feedback our concerns and to address the issues raised to improve this process for the future.
• The Council has introduced monthly meetings between Social Care Team managers and the Debt Recovery Team to prevent the build-up of large debts before recovery action starts.
40. The Council told me in April 2022 that it recognises how long the concerns have been raised without resolution. As such, it said that, to support a remedy for any injustice that may have been caused, it would like to offer the sum of £2,000. However, I also found it has already previously paid £750 to Ms X in 2021 as part of its response to her complaint.
41. Ms X says the Council has still not reached a finding with regards to its safeguarding enquiry and she remains under suspicion. Ms X said the above delays resulted in a delay in:
• The financial dispute and the Council being able to carry out a financial reassessment.
• Her and her mother’s bank accounts being thawed (only happened in November 2021 and February 2022, once the CoP appointed her son as Deputy).
• Coming to a conclusion in terms of the abuse allegations and the banks removing the ‘fraud marker’ against her.
42. Ms X said these delays resulted in her having to be distressed and inconvenienced for longer than she should have been.
43. She said the Council recently told her that it would change the start date of funding her mother’s care package from mid-April 2017 to mid-March 2017.

Analysis

44. The Council has acknowledged it was at fault for a delay in applying to the court of protection, as well as for some of the delays that happened during the court of protection process. This has resulted in a delay in bringing this case to a conclusion, thereby extending Ms X’s distress. I found this resulted in a total avoidable delay of around one year. The Council should apologise for this and pay a financial remedy.
45. There was also a delay in starting the process with DWP to become Ms M’s deputy. If Ms X believes she had to pay for some of her mother’s expenses during 2019 as a result, she can provide evidence of that to Ms M’s court appointed deputy and request to be reimbursed for this.
46. In terms of a financial remedy, I have to take into account that Ms X could have avoided the situation that eventually arose (bank accounts being frozen, fraud marker etc), and that caused her a lot of inconvenience and distress from 2019 onwards. The Council has since (April 2022) offered a total financial remedy of £2,000, which is a sufficient remedy.

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Agreed action

47. I recommended that, within four weeks of my decision, the Council should:
• Apologise to Ms X for the distress caused by any faults mentioned above, for which it has not already apologised for in the past.
• Pay an amount of £1,250 to Ms X (the £2,000 remedy offered minus the amount already paid in 2021).
• Write a letter to the COP deputy advising there are no further outstanding queries concerning deprivation/misuse of funds in relation to the original safeguarding concerns. It will also conclude outstanding queries with Ms X in relation to the latest Financial Assessment position.
• Share the lessons learned with relevant staff within its adult social care and finance departments.

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Final decision

48. For reasons mentioned above, there has been some fault by the Council. As a result, I have upheld Ms X’s complaint.
49. 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