Summary: Mr X complained about the Council’s handling of becoming his appointee and how it communicated and supported him in the process. He said as a result he experienced distress and uncertainty. We found fault by the Council for causing some delay, communicating poorly, and its complaints handling was unclear. The Council did take steps to mitigate the appointee process’s impact on Mr X. The Council will apologise and make a symbolic payment to acknowledge the injustice Mr X experienced. It will also carry out a service improvement recommendation.

The complaint

1. Mr X complained, with the support of a representative Ms Y, about the way the Council handled the appointee process to manage his affairs. He said it caused delay, communicated poorly, and failed to provide enough advice and support in the process.
2. He also disagreed he lacked mental capacity to manage his finances.
3. Mr X said, as a result, he had experienced distress due to the uncertainty around the process and his financial situation. He was also without money for a period which meant he could not attend prearranged plans.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
8. 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(1), as amended)

Back to top

How I considered this complaint

9. I considered evidence provided by Mr X, Mrs Y, and Council as well as relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Back to top

What I found

Relevant law, guidance, and policy

Mental Capacity Act

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.

Mental capacity assessment

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.
17. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Best interest decision making

18. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
19. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Court of Protection

20. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
21. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:
• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

Adult Social Care complaints

22. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:
• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

23. Regulations do not say how long a complaint investigation should take. But they do say an expected timescale must be explained at the start, usually in discussion with the complainant. If the complainant does not want to discuss this, the responsible body must decide the timescales and confirm them to the complainant in writing. The body must keep the complainant informed of progress during the investigation ‘as far as reasonably practicable’. If the responsible body has not provided its response after six months (or after a longer period agreed with the complainant), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

24. I have set out a summary of the key events. This is not intended to cover each and every event which occurred.
25. Mr X lives alone and has care and support needs. He has support from a representative, Ms Y.
26. The Council had a social worker allocated to Mr X’s case. Concerns about his ability to manage his finances had been ongoing for some time in early 2024.
27. In Spring 2024 the Council met with Mr X and Ms Y to consider his ability to manage his finances. A Mental Capacity and a Best Interest Assessment was completed.
28. The Council found Mr X did not have capacity to manage his finances and it was in his best interest for the Council to become appointees.
29. In May 2024 the Council made applied to the Department for Work and Pensions (DWP) to become Mr X’s appointee.
30. In June 2024 Ms Y complained on Mr X’s behalf to the Council. This was the Council had not:
• shared enough information about the appointee process, when it would happen, and what was happening;
• informed Mr X about rights to appeal the decisions around the Council becoming his appointee, or for him to request a different appointee;
• been in contact for three months since the meeting with the social worker. Ms Y said she asked the Council for updates; and
• acted with a duty of care as the appointee process had been delayed.
31. A few weeks later Mr X did not receive his normal payment from DWP, and he did not receive this payment from the Council either. He therefore had no money to buy essentials and attend a planned event. Ms Y asked the Council for help.
32. Shortly after the Council provided Mr X with a £100 payment to enable him to buy essentials to resolve the issue.
33. The Council became appointee’s and received Mr X’s DWP payment in July 2024. However, this only related to one benefit, and not Mr X’s Universal credit claim.
34. In July 2024 the Council sought information from Mr X and Ms Y regarding his accounts, bills, contracts etc. to enable it to pay and manage his finances. During this time, Mr X received payment reminders as some bills were not paid and his phone was cut off.
35. Ms Y provided additional information for Mr X’s complaint. This included:
• the Council had failed to inform Mr X his June 2024 DWP payment would be paid to the Council as his appointee. As a result, he had no money for essentials and his usual activities;
• he was also told to contact DWP, but this was not possible as DWP would not engage with him during the appointee process;
• he had got into arrears with companies and providers, and his phone was cut off as his bills were not paid;
• it sought financial information from him, but had decided he lacked capacity. He found this to be inappropriate. He also said the experience had been distressing and stressful due to his health conditions; and
• he was yet to receive a response to his complaint in line with its complaints policy.
36. In August 2024 the Council met with Mr X and Ms Y to discuss his complaint and the best way forward. It acknowledged the appointee process could have been handled better and arranged for an ongoing £100 payment to Mr C until his other DWP benefits were transferred to it as his appointee.
37. In October 2024 the Council provided its complaints response to Mr X. It partly upheld Mr X’s complaint and apologised. It found:
• it had not provided enough information and been clear enough when it had decided to become his appointee, and should have kept Mr X informed about progress, even if no updates were available. This meant he was unclear about the process including what was happening and when. However, it could not control how long the application took as DWP were responsible for this;
• it should have sought relevant financial information from Mr X from the outset to ensure it could manage his bills without delay when it became his appointee. It said some delay occurred when it subsequently sought information from Ms Y. This meant it was not able to do so initially when it became his appointee and arrears occured; and
• it had not been clear about the complaints process. This was because Mr X’s complaint was made to its corporate complaints process. It had not advised him this should have been its Adult Social Care complaints process which had a different process and timescales. It had updated its website to make this clearer.
38. The Council did not agree it was at fault on other parts of his complaint. It explained it was necessary to seek information from Mr X and Mrs Y, and acknowledged the process had been distressing and stressful for him. It also said it acted quickly when it became aware he had no money when his benefits payment was not received and arranged for an ongoing payment when the transfer of the remaining benefits was taking longer.
39. Mr X asked the Ombudsman to consider his complaint as he remained unhappy about the Council’s handling of the appointee process. He felt it should have been more supportive and proactive in the process, and it had not fully acknowledged the impact the experienced had on him. He said it had failed to have proper regard to the Equality Act 2010 in the process as he had been disadvantaged compared to someone who was not disabled which meant the experience impacted him more.
40. In response to Mr X’s complaint and our enquiries to the Council, it confirmed it had learnt from his complaint and were putting steps in place to improve its communication and information sharing during the appointee process. It has also made some information on its website clearer.

Analysis and findings

Council’s appointee decision

41. I have found no fault in how the Council reached its decision to become Mr X’s appointee, including its mental capacity and best interest decisions. This is because it followed the correct procedure and found Mr X did not have capacity to manage his finances. During the process it considered views of Mr X and others, risks and his previous financial management, and whether there were any less restrictive options.
42. Without fault in the process the Council followed, I cannot criticise its decision. I acknowledge Mr X feels the Council should have considered whether someone else could have become his appointee. However, no one else able or willing were known to the Council or brought to its attention at the time.
43. However, the Council should have informed Mr X and Ms Y about his rights to dispute its decision when he shared he did not agree with its decision. This would initially have been with the social worker who made the decision, or through the Council’s Adult Social Care complaints process. Its failure to make this clear was fault.
44. I have seen no evidence to suggest the Council should or would have changed its view. Nor that Mr X disputed its decision now through the Court of Protection. Its fault was therefore limited to the uncertainty this caused Mr X.

Was there delay in the appointee process?

45. The Council was responsible for making its decision about becoming an appointee and applying to DWP. Once it had applied, any delays would normally be outside its control. I have considered whether the Council caused delays in the process.
46. I found the Council caused:
• a short delay in Spring 2024. This was because it took its social worker one month to pass the case to its Appointee Team after the mental capacity and best interest decisions had been made. I have seen no good reason for this delay;
• a delay in becoming appointee for all Mr X’s benefits. This was because its initial application wrongly did not include his Universal Credit claim due to a misunderstanding; and
• a delay to obtain relevant financial information from Mr X, or Ms Y on his behalf when it had made the appointee decision in Spring 2024. This was necessary for the Council to be able to arrange payments of his bills without delay when it became his appointee.
47. I found the initial delay did not cause Mr X an injustice as his payments were not impacted. However, its subsequent delays caused Mr X an injustice. These were partly mitigated by the Council by arranging its ongoing payment to Mr X in Autumn 2024 until it became appointees for all his benefits. However, he experienced some unnecessary distress and uncertainty due to his bills not being paid or managed when they should have been.

Information sharing, communication and complaints handling

48. The Council found it had provided Mr X with information and support during the process. However, it agreed it had failed to provide enough or timely information, and its complaints process had been unclear.
49. I found the Council at fault for:
• its failure to ensure enough information about the appointee process were provided to Mr X and Ms Y from the outset. This included clearer information about when the appointee decision was made, when the process would start, and when benefit payments directly to Mr X would stop;
• causing a delay in responding to Ms Y when she asked for clarifications; and
• wrongly informing Mr X he could contact DWP for information. This is because it should have been aware DWP would not be able to discuss the case with Mr X during the appointee process.
50. I also found fault in the Council’s complaints handling. This was because it failed to explain its complaints procedure correctly regarding adult social care complaints, including the timescales for its response. I am satisfied Mr X experienced some frustration due to the uncertainty the Council’s faults caused him.
51. However, the injustice Mr X experienced was mitigated by the Council’s quick action to arrange a payment in June 2024, and their August 2024 meeting was a good and useful step to progress his concerns. I also understand the two further months it took to provide its complaint response was frustrating, however, this was within the timescales for the Adult Social Care complaints process and included the most recent concerns Mr X had raised in August 2024.

Equality Act 2010

52. I have considered whether the Council had regard to its duties under the Equality Act 2010. I am satisfied it did. However, it is clear the identified faults caused Mr X an injustice which is likely to have been aggravated due to his personal circumstances and disability.
53. I have taken this into account when reaching my view on the appropriate remedy to acknowledge the impact Mr X experienced.
54. The Council has already actioned some service improvements following its learning from Mr X’s complaint. I found these to be appropriate and have therefore only made recommendations to ensure these have progressed.

Back to top

Action

55. To remedy the injustice the Council caused to Mr X, the Council should, within one month of the final decision:
1. apologise in writing to Mr X to acknowledge the injustice its faults caused him;

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

2. pay Mr X a symbolic payment of £250 to acknowledge the distress and uncertainty he experienced as a result of the Council’s faults and delays.
2. Within three months of the final decision the Council should also:
1.  
2.  
3. share the Council’s planned information sheet for the appointee process to be used by social workers and shared with individuals. This was to ensure clear communication is provided at the outset of the process, individuals are kept informed, and relevant information is obtained without delay to ensure the Council can manage its appointee role effectively.
3. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

58. I have completed my investigation with a finding of fault by the Council which caused Mr X an injustice. The Council will apologise, make a symbolic payment, and carry out a service improvement recommendation.

Back to top

Investigator's decision on behalf of the Ombudsman