Summary: The Council was not at fault in the way it decided to protect Mr Y’s belongings when he went into hospital or in the time taken to return the belongings to him. It was at fault for the delay in asking Mr Y whether he was happy with the Council securing his belongings once it was satisfied he could make his own decisions, however, this did not cause an injustice to Mr Y. The Council has already made a service improvement. The Council was also at fault for delaying responding to Mr X’s complaint. The Council has already apologised to Mr X and offered him a symbolic payment. It has agreed to remind relevant staff of the timescales set out in its complaints’ procedure.

The complaint

1. Mr X complained on behalf of Mr Y, about the Council’s actions when Mr Y was admitted into hospital. He said the Council:
• took Mr Y’s personal belongings when he was admitted into hospital and delayed returning them back to him;
• visited Mr Y in a care home without providing any identification to staff; and
• delayed responding to his complaint.
2. Mr X said as a result, he was unable to access Mr Y’s home to prepare it for sale and use the money to help towards Mr Y’s care fees. He said the matter caused him and Mr Y distress and frustration. He wants the Council to acknowledge it acted with fault and to apologise to him and Mr Y.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. 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)
5. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. 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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What I have and have not investigated

7. 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)
8. Mr X complained about matters from January 2023. I have decided to investigate back to January 2023 as the Council delayed responding to his complaint.

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How I considered this complaint

9. I considered information provided by Mr X.
10. I considered information provided by the Council.
11. Mr X and the Council had the opportunity to comment on the draft version of this decision. I considered any comments received before making a final decision.

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What I found

The Care Act 2014

12. Section 47 of the Care Act 2014 states councils have a duty to protect the property of adults who are receiving care away from their home when they are unable to protect their belongings themselves. Councils must take reasonable steps to prevent or mitigate loss or damage to their belongings.

The Mental Capacity Act

13. 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.
14. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests. There are two types of LPA: property and finance and health and welfare.

The Council’s protection of property and belongings policy October 2019

15. The Council’s policy states it has a duty to protect the moveable property and/or assets of adults being cared for away from their community setting home (whether permanently or temporarily). The Council may take reasonable steps to ensure that the belongings and property are safe and secure.
16. The policy applies to adults who are unable to protect or deal with the belongings and property when they are admitted to a residential establishment or any hospital (or both) and there are no suitable arrangements in place such as appropriate relatives, friends, neighbours or other interested parties who are willing and able to accept responsibility.
17. The Council must obtain signed consent from the adult concerned or an authorised person under the Mental Capacity Act 2005 before entering the property.
18. The Council must complete an authorisation form which provides the necessary valid documentation as required under the Care Act 2014 when undertaking the power to enter the adult’s home and deal with their moveable property.
19. Where the adult lacks the mental capacity to authorise the Council to enter their property to secure it, if the situation is urgent requiring entry to the property and there is no time to hold a Best Interests Meeting, the Council is permitted to complete the authorisation form on behalf of the adult.
20. The Council must make reasonable enquiries to determine that no other suitable arrangements are in place with relatives, friends, landlords or neighbours willing to undertake this function.
21. The Council will formally close the protection of property activity when the adult no longer requires it. The Council can only release the belongings and property directly to the adult concerned.

The Council’s complaints procedure

22. The Council will aim to respond to adult social care complaints within 20 working days. If there are any delays, the Council will inform the complainant.
23. If the complainant is unhappy with the Council’s response, the Council advises the complainant to contact its Customer Care and Complaints Team and then refer the complaint to the Ombudsman.

What happened

24. Mr Y lived with his partner in their own home.
25. Towards the end of January 2023, paramedics attended Mr Y and his partner’s home and found Mr Y’s partner unwell due to severe self-neglect. Subsequently, the paramedics admitted Mr Y’s partner into hospital where they died a few days later.
26. Mr Y was alone at home. The paramedics noted the property was in disrepair with urine and faeces throughout the property. They also noted there was no food or clothing in the property and the property itself was not secure. The Hospital was concerned Mr Y was at risk of self-neglect and therefore raised a safeguarding alert with the Council.
27. In response to the Hospital’s concerns, the Council attempted to speak with Mr Y. It called Mr Y’s landline number and visited Mr Y’s property however was unable to locate him. The Council liaised with various agencies including the Police. It also spoke with Mr Y’s late partner’s sister who said she did not want to be involved in the matter.
28. The Council managed to carry out a welfare check and visited Mr Y in his home. It found Mr Y was dehydrated due to a lack of fluid intake and was living in unsanitary conditions. The Council called the paramedics out to Mr Y’s property. The paramedics noted Mr Y appeared to be disoriented and showed he had problems with his memory. The paramedics admitted Mr Y into hospital.
29. At the time of his admission, Mr Y had in possession keys to his house and his wallet. The Council took Mr Y’s belongings and temporarily stored them in a safe place. The Council told Mr Y’s late partner’s sister and her family it had secured Mr Y’s keys and wallet.
30. The Council was not satisfied Mr Y was able to make his own decisions so was unable to gain his consent to secure his property. The Council therefore completed an authorisation form on behalf of Mr Y to do so. The Council then referred Mr Y’s case to its protection of property team who visited and secured the property in early-February 2023.
31. The Council’s records show between January and March 2023, it contacted Mr Y’s family who were estranged and his friends to enquire whether they would take responsibility for Mr Y’s belongings. However, they were unwilling to do so.
32. In April 2023, the Hospital discharged Mr Y to a care home (Care Home A) for short-term rehabilitation care.
33. In early-May 2023, the Council met with Mr Y. The Council’s records show it updated Mr Y that his belongings were being looked after by its protection of property team. Mr Y said his long-term plan was to return home.
34. In mid-June 2023, the Council met with Mr Y. The Council informed Mr Y his property was not habitable due to the disrepair. The Council and Mr Y discussed the option of selling his home and him moving into a residential care home. During the meeting, Mr Y asked the Council to return his bank card. The protection of property team returned it to Mr Y later in June 2023.
35. Towards the end of June 2023, the Council completed a care needs assessment with Mr Y. The assessment noted Mr Y had the mental capacity to make decisions about his discharge plan and care and support needs. At the beginning of July 2023, Mr Y moved into a residential care home (Care Home B).
36. The Council’s records show between January 2023 and December 2023, the Council had:
• collected Mr Y’s post regularly and handed it over to him;
• on Mr Y’s request, entered his property to collect personal items and handed them over to him;
• liaised with external agencies such as estate agents to help prepare his house for sale; and
• assisted him with his financial affairs so he could pay for his care.

During this time, Mr Y did not ask the Council to return his keys to him.

37. Mr X had been visiting Mr Y and had sometimes supported Mr Y during his meetings with the Council. In mid-November 2023, Mr X contacted the Council and said he and another friend of Mr Y were in the process of applying for Lasting Power of Attorney (LPA) for Mr Y. He told the Council their priority was to sell Mr Y’s house. Mr X asked the Council for the names of the estate agents it had liaised with who had valued the property. He also asked, how he could obtain the keys once he became the LPA for Mr Y.
38. The protection of property team responded to Mr X and said once he became LPA for Mr Y and had provided evidence of this to the Council, it would then arrange for the transfer of keys to him.
39. Mr X asked the Council why it would not return the keys to Mr Y when he was the legal owner of the property and the care needs assessment had established Mr Y had the mental capacity to make decisions. The Council’s records show around the same time, the Council had spoken with Mr Y and he had not expressed he wanted his keys returned.
40. In mid-December 2023, the Council asked Mr Y if he wanted his keys. Mr Y consented for the protection of property team to return his keys. As a result, the Council returned Mr Y his keys at the beginning of January 2024.
41. In January 2024, Mr X complained to the Council and said the Council did not have the legal right to act on behalf of Mr Y and keep his belongings. He also said Council staff had visited Mr Y in Care Home B without providing identification to care home staff.
42. In February 2024, the Council responded to Mr X’s complaint and said:
• at the time Mr Y was taken into hospital, his property was not secure and the Council had decided he did not have the capacity to decide how to protect his property. The Council therefore took Mr Y’s belongings and referred his case to its protection of property team;
• Mr Y later regained capacity and was aware the Council had his belongings. The Council supported Mr Y with obtaining items from his home. Mr Y did not ask the Council to return his keys;
• the Council had made various attempts to contact his family members; and
• advised Mr X to contact Care Home B about the matter in relation to Council staff not providing identification when visiting Mr Y as it would have its own policies and procedures to follow.

The Council referred Mr X to us if he was unhappy with its response.

43. Mr X was unhappy with the Council’s response. Shortly after the Council’s response, he asked the Council to investigate his complaint further. As part of his complaint Mr X questioned:
• when the Council had assessed Mr Y as having regained capacity;
• why the Council had not returned Mr Y’s belongings to him if he had regained capacity; and
• why Council staff did not sign into Care Home B when they visited Mr Y as the visitors’ books was visible upon entry of the Care Home.
44. In December 2024, the Council provided a further response to Mr X and said:
• it had assessed Mr Y in June 2023 as having the mental capacity to make decisions regarding his care and support needs. It did not complete a separate mental capacity assessment in relation to Mr Y making decisions about his belongings. The Council apologised to Mr X for not making its response clear in its initial complaint response;
• it was not aware of any changes to Mr Y’s circumstances and so continued to follow its protection of property and belongings policy. The Council said in line with its policy, it required a request for it to return belongings to the owner. It returned Mr Y’s belongings to him once it had received a request; and
• all Council staff wear identification badges and they had presented their badges to Care Home B upon arrival however, it agreed staff also should have signed into the visitor’s book. The Council apologised to Mr X they had not done this.

The Council also apologised to Mr X for its delayed complaint response.

45. Mr X remained unhappy and complained to us.
46. In response to my enquiries, the Council said:
• it did not complete a mental capacity assessment with Mr Y and confirmed neither did the Hospital;
• although Mr Y did not ask the Council to return all his belongings to him, the Council should have asked Mr Y whether he was happy for the Council to continue to secure them and documented his decision. The Council said it would amend its process so when someone does regain capacity, it will ask them whether they are happy for the Council to continue to secure their belongings and document their decision.
47. The Council also said it would offer Mr X £150 for the distress and frustration it caused him by delaying responding to his complaint.

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Findings

48. The evidence shows there was no fault in the way the Council reached the decision to secure Mr Y’s property. It acted in line with its policy. The Council:
• took immediate action and secured Mr Y’s belongings and property as at the time of his admission, it considered Mr Y’s mental capacity to make decisions was in doubt and his property was not secure;
• contacted Mr Y’s relatives and friends to determine whether they wanted to and were able to take on responsibility of Mr Y’s belongings; and
• returned Mr Y’s belongings upon Mr Y’s requests.

There was no fault by the Council.

49. During his hospital admission, the records show Mr Y’s mental capacity improved. Although Mr Y was aware the Council was holding his belongings and accessing his property and he did not object to this, the Council should have asked Mr Y whether he was happy with the arrangement. The failure to ask this was fault however, I cannot say the fault caused injustice. The records show he did not object to the arrangement and did not request for the Council to return his items earlier. The Council recognised it should have asked Mr Y whether he was happy with the arrangement and documented his decision. It has said it would amend its process. This is appropriate.
50. Mr X said the Council delayed returning Mr Y’s belongings. The evidence shows the Council returned Mr Y’s belongings within reasonable time upon his request. The Council was not at fault.
51. The Council did not return Mr Y’s keys when Mr X requested this in late 2023. This was because, at the time, Mr X did not have LPA and there was no indication that Mr Y wanted the Council to return his keys. The Council later spoke with Mr Y who consented for the Council to return his belongings. This was appropriate. The Council was not at fault.
52. Mr X was unhappy with the Council’s initial complaint response and immediately after receiving the response, he asked the Council to investigate it further. Although the Council’s policy does not specifically state it has a stage two complaints process, if it does intend to respond, we would expect it to be in line with the timescales within its complaints’ procedure. The Council’s failure to respond to Mr X’s complaint until December 2024, nearly ten months later, was fault and caused Mr X distress and frustration. The Council has recognised it was at fault and said it will offer Mr X £150 for the injustice it caused to him. This is appropriate.
53. Mr X said Council staff did not provide identification and failed to sign into Care Home B’s visitor’s book. I have decided not to investigate this aspect of Mr X’s complaint further because I cannot say this caused a significant injustice to Mr X and Mr Y. A further investigation would also not add anything further to the Council’s investigation into this matter.

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Agreed Actions

54. Within one month of the final decision, the Council will:
• provide us with evidence it has amended its process so when a person using its service under the protection of property team does regain capacity, it will ask them whether they are happy for the Council to continue to secure their belongings and document their decision;
• write to Mr X to offer him the payment of £150 for the distress and frustration it caused him by delaying responding to his complaint; and
• remind relevant staff to respond to complaints in line with its complaints’ procedure. The Council should provide us with evidence it has complied with this action.

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Final Decision

I have now completed my investigation. There was some fault by the Council. It has agreed to the recommendations to remedy the injustice caused and prevent a recurrence of fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman