Summary: There was fault by the Council in the way it managed the late Mr Y’s finances as his deputy. This caused his relative Mr X avoidable distress and time and trouble but did not cause the estate a loss. The Council has already taken appropriate action to remedy Mr X’s injustice and changed its procedures to minimise the chance of recurrence.

The complaint

1. Mr X complained the Council failed to properly take care of his late father Mr Y’s finances when acting as Mr Y’s deputy. Mr X said this caused a financial loss to the estate and it caused him avoidable distress, time and trouble.

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The Ombudsman’s role and powers

2. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. This complaint is about things that happened in 2015 and 2018. Mr X did not get the information from the Council about Mr Y’s finances until September 2021, so he was not aware of the fault before then. As Mr X complained to us within 12 months of becoming aware of the issue, we have not treated his complaint as late.
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 unremedied injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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

6. I considered Mr X’s complaint, the Council’s responses and documents in this statement. I discussed the complaint with Mr X and his wife.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law

8. The Court of Protection appoints deputies to manage the finances of adults who cannot because they lack mental capacity. A deputy must act in the best interests of the person whose affairs they manager. They must act with due care and skill.
9. Residential care is chargeable. People who have capital over £23,250 have to pay the full cost of their care. Those with capital under £23,250 may be entitled to council funding. Councils charge people for care following national charging rules. Councils are entitled to take a person’s income including their state pension and any occupational pension when calculating their charge. This means the person has to pay almost all their income towards the cost of their care. The council must leave the person with a weekly personal allowance of £24.90.

What happened

10. Mr Y lived in a care home from 2015 until his death in April 2020. Initially, he paid for the full cost of his care from his capital. The latter part of his stay was funded by the Council with Mr Y paying a contribution towards the cost.
11. A copy of the Council’s financial assessment visit form completed in 2015 said Mr Y had an occupational pension.
12. The Court of Protection appointed the Council to manage Mr Y’s finances as his deputy. Mr X’s complaint is about:
1. the Council’s deputyship team failing to ensure Mr Y’s occupational pension was paid into Mr Y’s account. Mr X alleges another relative arranged for the pension to go into a different account and then took it.
2. The deputyship team not taking steps to ensure Mr Y got the inheritance he was entitled to from his wife’s estate when she died in 2018
3. The Council taking until September 2021 to account for the use of Mr Y’s money.
13. Mr X complained to the Office of the Public Guardian (OPG) about the deputyship team. The OPG is responsible for overseeing deputies. The OPG responded in December 2021 saying the Council had confirmed it had failed to secure the pension (and a savings account) listed on the court application. The OPG explained it did not have any powers to take any action because Mr Y had died and so its legal role had ended.
14. Mr X also complained to the Council. Its first response in March 2022 said:
• It accepted it made errors in managing Mr Y’s account and was sorry
• It had also accidentally paid out £6000 to Mr X by mistake. (Mr X disputes getting £6000 from the Council and his wife told me it was £3000, which they had to obtain from another relative, but this is what the Council’s response said) It would not ask him to pay this back given its errors. It would also make an additional payment of £1300 to him
15. Mr X was unhappy with the first response and escalated his complaint. The Council’s second response in May said:
• It did not have any evidence officers were aware of the pension in June 2016 when the deputyship team was looking at the court paperwork to establish Mr Y’s finances.
• Mr Y’s care was funded by the Council for some of the time he was in the care home and there was no evidence of an occupational pension on any of the available documents.
• All income Mr Y received would have been used to pay for his care during the period the Council funded. It was highly unlikely there would have been much, if any difference in the final balance of Mr Y’s savings because the occupational pension would have paid towards his care and therefore reduced the Council’s contribution towards the cost.
• The records confirm the deputyship team tried to call Mrs Y’s relative about the inheritance just after she died, but there was no reply. The records also noted Mr X’s second call to the deputyship team and the advice given that the deputy would not comment. It was reasonable for him to assume that any money owed had been paid to Mr Y. There was no evidence Mr Y received any money from Mrs Y’s estate. The Council was sorry this was not followed up. The money would have been included as part of the financial assessment and increased Mr Y’s care charge. It would not have made a difference to the balance in the account on his death.
16. The Council told me that it had made some changes to the financial assessment team since the events leading to this complaint. These included setting up a dedicated deputyship team with six staff. The Council also said it was updating procedures to ensure all a person’s assets were captured when a deputyship order was granted and this would be complete by the end of this month.

Findings: was there fault and if so is there any injustice requiring a remedy?

17. There was fault in the way the Council managed the late Mr X’s finances. The Council accepted it was at fault and acknowledged this in its complaint responses. The fault did not come to light until after Mr Y’s death and so the body responsible for supervising deputies (the OPG) could not take action.
18. The Council took too long (almost 18 months) to advise Mr Y of the financial position. This was an additional fault causing avoidable distress. The complaint response was also inaccurate because it said the Council had no evidence of an occupational pension. But there was a 2015 financial assessment form which listed the occupational pension as I have explained in paragraph 11.
19. As Mr X’s deputy, the Council had a responsibility to act with due care and skill and collect all his available income and assets. I find it failed to do so which was fault. The deputy should have checked all records the Council held on Mr X (not just the court papers) to ensure all income and assets potentially in existence were identified and collected. The deputy should have followed up contact with the late Mrs Y’s daughter and explored whether any inheritance was due to Mr X. The deputy failed to do so which was fault.
20. Although the Council was at fault, there is not enough evidence for me to conclude on a balance of probability that Mr Y’s estate suffered a financial loss. This is because charging rules for residential care mean if a person has assets over £23,250, they have to pay for the full cost of their care. Any inheritance Mr Y should have received from his wife’s estate would have been paid out by the deputy in care fees in full until his assets fell back to £23,250. And, any additional income he would have received from his occupational pension would have been taken in full towards his weekly care home fees as well. This is the way the charging rules work and is not fault.
21. The Council made a payment of £1300 to Mr Y to reflect the impact of its failings and it has already apologised in its complaint response. I find this is an appropriate remedy for the distress, frustration and time and trouble caused by the deputyship team’s fault. There are no grounds for me to recommend the Council pays the estate the lost pension and inheritance because on a balance of probability, they would have been spent on care fees.
22. The Council has also recruited additional dedicated staff to act as deputies and is in the process of updating its procedures to ensure all assets are identified. This is an appropriate action to minimise the risk of recurrence. There is no need for me to recommend any further changes to processes.

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Final decision

23. There was fault by the Council in the way it managed the late Mr Y’s finances as his deputy. This caused his relative Mr X avoidable distress and time and trouble but did not cause the estate a loss. The Council has already taken appropriate action to remedy Mr X’s injustice and changed its procedures to minimise the change of recurrence.
24. I completed the investigation.

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Investigator's decision on behalf of the Ombudsman