Summary: Mr X complains the Council is failing to take decisions about significant items of expenditure properly, resulting in his brother spending money inappropriately. The Council has not been at fault over this matter.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council is failing to take decisions about significant items of expenditure properly, resulting in his brother, Mr Y, spending money inappropriately.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X and the Council, for me to consider before making my final decision.

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What I found

What happened

5. Mr Y has a learning disability. He lives in supported living accommodation with 24-hour support with other people with similar needs. Until November 2017 the Council presumed Mr Y had the capacity to manage his finances, although with support from his care provider. In November 2017 the Council assessed his capacity to “make decisions regarding his finances and managing his money and who supports him to do this”. It decided he had the capacity to “decide that he wants to be responsible for managing his finances with help from support staff that he knows and trusts”.
6. In December 2020 the Council did a further mental capacity assessment. This was to decide if Mr Y had the capacity “to understand and manage his finances - in terms of where his money comes from and what he needs to use his money for”. The Council decided he lacked the capacity to:
• make decisions about more complex areas of his finances (for instance, applying for benefits, paying rent and household bills); and
• identify a lasting power of attorney.
7. The Council told Mr X about its decisions. He said he would apply to the Court of Protection to be his brother’s Deputy for property and financial affairs. However, he later decided not to do this.
8. The Council’s May 2021 assessment of Mr Y’s needs said:
• he lacked the capacity to manage his finances but remained involved with his money on a daily basis;
• when he sees something he wants to buy, he can plan and save up the money needed; and
• the Council would become a Department of Work and Pensions (DWP) Appointee to manage his benefits and expenditure.
9. The Council has taken on the role of DWP Appointee.
10. The Council’s records show Mr Y has an independent advocate who has helped him make decisions about significant items of expenditure (for instance buying furniture).
11. When the Council replied to Mr X’s complaint it said:
• care workers supported Mr Y to buy things and choose activities, including holidays;
• Mr Y had a payment card and accessed his money weekly;
• he had a payment card at his accommodation but the Council was in the process of moving it to its safe;
• Mr Y could tell his brother about his purchases if he chose to do so;
• the care provider supported Mr Y with day-to-day purchases;
• the Council approved larger purchases, subject to him having enough money;
• Mr Y’s furniture appeared worn and broken. Staff had supported him to choose items with his money and he was happy with what he had bought;
• the arrangements for managing Mr Y’s money had been informal until it assessed him as lacking the mental capacity to do this himself;
• after that, the Council had to put in place formal arrangements, which included having bank statements sent to Mr Y; and
• all future holidays would be planned using the Council’s holiday protocol; and
• with Mr Y’s consent, Mr X could be involved wherever appropriate.

Legal and administrative background

12. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
13. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
14. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
15. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:
• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?
16. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.

Is there evidence of fault by the Council which caused injustice?

17. The evidence shows the Council has acted in line with the Mental Capacity Act. Having assessed Mr Y as lacking the capacity to make some financial decisions, it has put formal support in place to help him with his finances. However, Mr Y remains able to make many decisions for himself. The Council has therefore put other support in place (an independent advocate) to ensure he can continue to make such decisions. Mr X has no role to play in making those decisions unless his brother wants him to help.

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Final decision

18. I have completed my investigation on the basis there has been no fault by the Council.

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Investigator's decision on behalf of the Ombudsman