Summary: We upheld a complaint made by Mr B about a form used by the Alternative Futures Group when a user of its services is at end of life. We found the form caused unnecessary confusion. The Provider did not offer enough advice to staff on how to complete it, including how it recorded efforts to meet someone’s last wishes. Nor did it ask if the person completing the form if they wanted their wishes shared before death. We considered these faults caused Mr B some unnecessary distress when he learnt his brother had completed such a form before he died. However, we did not agree the form created an entitlement for Mr B to benefit from his brother’s estate. At the end of this statement, we ask the Alternative Futures Group to apologise, make a symbolic payment to Mr B and make service improvements to prevent a repeat.

The complaint

1. Mr B’s complaint concerns his late brother, Mr C, who died in December 2023. Mr C lived in supported living accommodation, provided by the Alternative Futures Group (‘the Provider’). Warrington Council and the NHS Cheshire and Merseyside Integrated Care Board (‘the ICB’) paid jointly for the Provider to meet Mr C’s accommodation, health and social care needs.
2. In particular, Mr B complains the Provider:

• completed a document called ‘my last wishes’ with Mr C, which may have led Mr C to believe he had bequeathed money to Mr B and his wife Mrs B, following his death;
• failed to support Mr C to carry out a wish to attend a football game before he died, set out in that document;
• failed to prevent a loss of Mr C’s personal possessions, believed stolen in the weeks before he died;
• failed to prevent Mr C being a victim of abuse from another resident in the supported living placement;
• spent money from Mr C’s bank account following his death.

3. Mr B says as a result he did not receive money from Mr C’s estate which he believes Mr C intended to leave to him. While the loss of personal possessions and the abuse reported caused Mr C distress.

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The Ombudsmen’s role and powers

4. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
5. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
6. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
7. If we are satisfied with the actions or proposed actions of the organisations that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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How I considered this complaint

8. I considered evidence provided by Mr B, the Council, the ICB and the Provider, as well as relevant law, policy and guidance.
9. I gave Mr B, the Council, the Provider and the ICB opportunity to comment on a draft version of this decision statement and provide any further evidence they considered relevant to its content. I took account of any responses I received before putting the statement in its final format.

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What I found

Key legal and administrative considerations

10. The Provider has a policy covering the “death of a person we support”. The policy explains how it will address “practical issues”, including “the return of medications, belongings and financial matters”. It refers to the Provider having a ‘Death Review Group’ whose terms of reference include overseeing “issues of good practice” around the death of someone in its care.
11. The policy also refers to a form used by the Provider called “my last wishes”, which is at the crux of this complaint.
12. On its cover, the form says it is not legally binding. It then asks for personal details of the person using the Provider’s service and asks if they have capacity to make and understand “these plans”. It asks who the person wants present at their end of life and who the Provider should contact when they die. It asks if they have made any funeral plans or whom they want to arrange this. It then goes into detail about what they want for their funeral, such as the service, music and so on. Page 12 of the form has the heading "my will”. It asks if the person has made a will and if so, details of where to find it. Next, it asks the person what they want to happen to any money, possessions and clothes they own. The final part of the form allows the person to add any thoughts or “things I would like”.
13. The Provider does not provide advice for staff on completing the form with users of its services. The Provider told us that it asks if the person completing the form has a will, for administrative purposes only.

The key facts

14. Mr C moved to supported living accommodation in 2017. This followed his discharge from hospital after a detention under Section 3 of the Mental Health Act. The Council and ICB paid for Mr C’s accommodation and support costs equally, under Section 117 of the Mental Health Act.
15. Care records provided by the Council say that Mr C had care and health needs arising from brain damage. They say Mr C did not have capacity to decide where he should live or about his care needs. However, he could make day-to-day choices around matters such as what to wear, or how he wanted to spend his time.
16. The records show Mr C had a close relationship with Mr and Mrs B. Mr C also had adult children and grandchildren, but care records described his relations with them as more distant.
17. No-one had a Power of Attorney to act for Mr C for either his financial affairs or to decide matters affecting his health and welfare. The Provider acted as his appointee for benefit purposes and would help Mr C pay bills and meet day-to-day spending.
18. By July 2023 Mr C had received a diagnosis of a terminal illness. He completed the “my last wishes” document with help from the Provider. The Provider declared on the form Mr C had capacity “to make and understand these plans”. It did not complete a separate mental capacity assessment with him.
19. The form recorded Mr C asking his support worker to help arrange his funeral. He made some requests for his funeral arrangements, such as what flowers he wanted and what music he wanted played. He also said he wanted to buy everyone a drink after his funeral.
20. On page 12, headed ‘my will’, the Provider did not record any answer to the question asking Mr C if he had made a will. But Mr C said he would like his money to go to Mr and Mrs B. He wanted his possessions and clothing to go to his children and grandchildren.
21. In the section at the end of the form headed “things I would like”, Mr C said he wanted to go and watch the football team he supported “one last time”.
22. At the beginning of October 2023, the Provider recorded speaking to Mr B about Mr C’s health and other matters. It recorded that Mr C was now in the advanced stages of his illness and did not know how long he might have to live. It recorded speaking to Mr B about funeral arrangements also.
23. Also, at the beginning of October 2023 the Provider noted Mr C had items of clothing missing from his room. It recorded reporting this to the police as potential theft. It also recorded notes of conversations with Mr B and other family members, who expressed the view that a relative had stolen the items.
24. In response to the incident the Provider completed a risk assessment, which said it would supervise some visits to Mr C. It did not supervise visits from Mr and Mrs B.
25. Mr B said despite this he found the door to Mr C’s home unlocked. He believes this meant visitors could come and go to and from the property unsupervised. The Provider told us it had to consider the needs of other residents and so could not always leave the door locked.
26. Later in October 2023 the Provider recorded speaking to Mrs B, who referred to hearing about an incident involving another resident at the placement causing distress to Mr C. The note said Mrs B had reported this to the police. A separate note made by the Provider in November 2023 said it had reported allegations to the police that another resident in the home, had abused Mr C. The notes contain a brief description of the alleged incident, but do not say when it took place nor who reported it. I understand the incident referred to in the November 2023 case note was the same as that discussed in the October 2023 telephone call.
27. The Provider has not said what action the police took in response. Nor is there any record of the Care Provider reported this incident to the Council, for consideration of its adult safeguarding powers.

Mr B’s complaint

28. In June 2024 Mr B complained about the Provider’s actions following completion of the ‘my last wishes’ form, which he only saw after Mr C died. He said the Care Provider should have encouraged Mr C to write a will. Mr B also complained that Mr C lost personal possessions in the weeks before he died, believed stolen.
29. In mid-September 2024, Mr B added to his complaint. He said that one of Mr C’s children reported witnessing Mr C receiving abuse from another resident. This was the same incident described in the October and November 2023 case notes.
30. A few days later, the Provider gave its response to Mr B, saying it had taken account of his September 2024 email. It said:

• it did not have a policy to support users of its services to make a will. Also, that it did not have consent from Mr C to share the ‘my last wishes’ document before he died;
• that Mr C had been too ill to attend a football match before he died, but had watched a game with his family at his home;
• that it recognised Mr C had lost items before he died. It had therefore put arrangements in place to supervise some visits Mr C received.

31. Before it completed its reply, the Provider had undertaken an internal investigation. This included speaking to the support worker who completed the ‘my last wishes’ form with Mr C. The Provider’s notes said the support worker did not think it formed part of her role to advise Mr C about making a will.
32. The Provider signposted Mr B to the LGSCO to escalate his complaint, if unhappy with its reply. However, before he approached the LGSCO Mr B wrote to the Provider again. In his comments Mr B said there was no evidence from the ‘my last wishes’ form that Mr C did not want its contents known to his family before he died. He also questioned the Provider’s response to the loss of Mr C’s possessions.
33. The Provider sent a brief response, where it again signposted Mr B to the LGSCO. When Mr B escalated his complaint to the LGSCO he asked for consideration of another matter. He said that at Mr C’s funeral, staff from the Provider spent Mr C’s money buying drinks and so on. Mr B questioned how this was possible, if it was not possible for the Provider to comply with Mr C’s wishes about his money going to Mr and Mrs B. The Provider told us Mr B had not raised this matter with it before. It offered to carry out a separate investigation.
34. In answer to our enquiries, the Provider said it would carry out a “thorough review” of the ‘my last wishes’ document following this investigation. This would include keeping a more detailed record of someone’s capacity to understand the form. It would provide more clarity about why it asks someone if they have a will. It also suggested it would produce more guidance for its staff on helping them support a user of its services to complete the form.
35. The Council told us it wanted to work with all service providers it commissioned who might work with people approaching end of life. It said that it had recently held an event for those working with learning disabled adults, and those with mental health conditions, on end-of-life planning, including funeral planning.

My findings

Complaints about the ‘my last wishes’ document

36. I consider this document performs two key functions. The first is of clear practical purpose for the Provider as it will help inform the care and support someone receives when at the end of life. For example, who they want at their bedside. It is good practice the Provider seeks to deliver person centred care in this way at the end of someone’s life.
37. Its second function is to explore the person’s wishes after they die. This information may help the Provider where it arranges a funeral for the person. In other cases, the information will be helpful to the person’s next of kin, partner or family member responsible for such arrangements.
38. It is Mr B’s contention the form serves the same purpose, and so should therefore have the same status, as a legally binding will. Mr B believes that when Mr C completed the form, he may have understood it to have a binding effect on what happened to his money and possessions.
39. I can make no finding on this question. There is a separate legal framework that decides who is responsible for managing the estate of someone who dies. A person can leave instructions on these matters in a will and name an executor whom they want to administer their estate (known as a grant of probate). If someone does not leave a will, their nearest living relative can apply for a grant of administration to manage the estate.
40. There is also a separate legal framework known as the laws of intestacy, which set out what happens to an estate when someone dies without a will. The Courts have powers to intervene in disputes over the grant of probate or who has authority to administer an estate; as well as disputes over the distribution of an estate. There is no role for the Ombudsmen to make rulings on such matters.
41. But that said I can take a view on administrative matters connected with the ‘my last wishes’ form. For example, whether there is any fault in the form’s construction, or the procedure followed by the Provider when Mr C completed it.
42. I note first the Provider does attempt to distinguish the form from a will. First, there is the document’s title. A wish is clearly not the same as a legally binding duty. Second, on its cover, the Provider also says the document is not legally binding. Third, the document also covers the person’s wishes around care and treatment before they die. These matters would not usually form part of a will, which concerns what happens after someone dies.
43. I also recognise the context in which someone completes the form. They do not do so alone but with help from a support worker or manager. That person will check the capacity of the person to understand the form. So, this is an opportunity to make clear the person understands the form has no binding effect.
44. But despite these considerations, I must still find fault with the form. The sub-heading on page 12 of the form has the title “my will”, which I find inherently confusing. The questions that follow about what someone wants to happen to their money and possessions also clearly cover the same ground that a will usually covers.
45. I also find the form has an important omission. It does not ask the person completing the form if they want information contained in it shared with anyone before they die. I consider there is an implicit suggestion the Provider will share some information contained in the form before the person dies. This is because otherwise it may not be possible to comply with the person’s last wishes relevant to their end-of-life care. But there can be no assumption it should share all the content before someone dies, especially that relating to matters after death. The Provider should therefore seek consent from the person to find out what they want it to share before they reach end of life.
46. As well as these faults, there was also fault in how the Provider completed the form in Mr C’s case. It left the question about whether he had completed a will blank, with no note to explain why. This has led me to consider the lack of guidance given to staff on completing the form. Because the Provider’s own investigation into this complaint, revealed a reluctance by its staff to have discussions with its clients on making wills, which might explain why it left the question incomplete.
47. I can understand why staff may not feel comfortable straying into areas close to legal advice where they may reasonably lack knowledge. But if the Provider is to ask its users about whether they have a will, and the answer is ‘no’, then it can foresee having to answer questions. For example, the person may want to know if they should make a will or how they might do so. The Provider could usefully help train and prepare its staff for this.
48. I also understand Mr B’s concern at reading his brother wanted to go and watch his favourite football team one last time but could not do so. The Provider says it could not have facilitated that wish, in the time available between Mr C completing the form and his death. I note here the records kept by the Provider suggest that by the beginning of October, Mr C was very ill. I accept the account of the Provider that by that time he did not want to go out and leave his home. And I note that it said it made arrangements for Mr C to watch his favourite team in his home, with his family around him.
49. But that said, I consider this part of the complaint raises an important practical question for the Provider. Which is what procedure does it have in place, to consider such wishes and the practicality of carrying them out? The Provider has no evidence trail showing whether it made enquiries for Mr C, or with his family, about going to a football match. Nor any contemporaneous record that explains why it did not pursue this clearly stated wish. When someone has expressed a clear ‘last wish’ as Mr C did, I consider it fault the Provider cannot provide any record detailing any effort to help them fulfil that.
50. Turning to consequence of these faults, I cannot say Mr C did not understand the purpose of the form at the time he completed it. Mr B has queried if he would have had capacity to understand it and pointed to those care records suggesting he did not have capacity to make some major decisions in his life. But while noting that, there is evidence Mr C had capacity to make day to day decisions. So, I find a lack of evidence to counter the Provider’s record that Mr C had capacity to understand it. Consequently, I cannot find that Mr C understood the ‘my last wishes form’ as a statement of anything other than what he wanted to happen as he entered end of life and after his death. I cannot conclude, as Mr B might prefer, that Mr C understood it as a statement of what would happen during that time.
51. I have gone on to consider the consequence of these faults. I find that but for the flaws in the form and its completion, events might have turned out differently. I consider had the Provider addressed properly the question about whether Mr C had a will, he might have expressed a wish to write one. And that with suitable advice to its staff the Provider may have helped facilitate that through giving suitable signposting to Mr C (I do not consider the Provider under any obligation to itself offer a will-writing service). Or had Mr C asked the Provider to share his wishes before he died, his family could have stepped in directly to support him to make a will. Maybe, Mr C could also have gone to a football match one last time as he wanted.
52. However, against this I must also balance that it is possible Mr C may not have wanted to pursue writing a will. And even if he had, I cannot say the contents of a will, would have mirrored what he wrote in the ‘my last wishes form'. I also think it likely he was too ill to go to a football match in the time available to arrange this. So, while events may have turned out differently it is also possible they would not have done so.
53. In which case I must find the fault in this case has resulted in some avoidable uncertainty. That has consequences for Mr B who will therefore never know if events might have turned out differently. We consider uncertainty a form of distress, which in turn is a form of injustice. I find Mr B was caused injustice indirectly therefore, by the Provider’s fault.
54. Below, I recommend action I want the Provider to take to remedy this injustice. Before I set that out, I must address the remainder of Mr B’s complaint.

The complaint about loss of possessions

55. I saw no evidence that led me to consider the loss of Mr C’s clothing was foreseeable or preventable. So, while it was no doubt distressing for him and for Mr B, I could not say that distress arose from any fault by the Provider.
56. I also found no reason to fault the Provider’s response to the loss, which arose from an assumed theft. The Provider acted to tell the police, something appropriate in circumstances where a loss results from suspected crime. It also put in place measures to help safeguard Mr C’s possessions by supervising some visits.
57. I accept Mr B witnessed occasions where he could access Mr C’s home without any challenge or difficulty. I understand his concern the Provider might therefore have better safeguarded his brother. But there is no suggestion from what I have read that Mr C received unannounced visits. So, I considered its response to the loss of possessions was proportionate.

The complaint about a safeguarding incident

58. I found it unhelpful the Provider did not comment on this when replying to Mr B’s complaint. While it clearly acknowledged the email Mr B sent in September 2024 as part of his complaint, it did not address this point. I could see no reason why not. This was a fault.
59. This caused injustice to Mr B as avoidable frustration in having to make further complaint to pursue some explanation.
60. Unfortunately, in its reply to my enquiries, the Provider has offered little more. There are two records that appear to refer to the same incident made in October and November 2023. But those records do not specify key details such as when the incident allegedly took place or identify the alleged perpetrator. They also do not provide comment on what investigation took place, nor the result of any investigation. There is also no sign the Provider made the Council aware, something I would have expected given the alleged seriousness of the report.
61. All of this is unsatisfactory. However, I am conscious that what Mr and Mrs B reported was second hand from another family member and not witnessed directly. That what, if anything took place, was also now at least two years ago (possibly more). And the primary purpose of all safeguarding investigations, is to keep the victim of any abuse safe. Something which does not arise when, as in this case, the alleged victim has sadly died.
62. For all these reasons, I see no merit in making further enquiries into this matter, nor recommending further investigation to explore the specific incident.

The complaint about spending at the funeral

63. I could not come to any view on the suggestion the Provider spent Mr C’s money inappropriately on the day of his funeral. I can see Mr C expressed a wish to buy a drink for everyone at his funeral in the ‘my last wishes’ form. But I am not clear the Provider, as Mr C’s appointee, had authority to do this. And I note also Mr B alleges its spending went beyond what Mr C had said he wanted.
64. I am not clear it will confer any benefit to Mr B for the Provider to explore this matter further, as he is not the inheritor of Mr C’s estate. But I can see there may be a wider benefit to the Provider in exploring its actions here. This is so it can give clear advice to employees following the death of one of its users of services, if they are appointees and responsible for funeral arrangements. So, in my recommended actions below I ask that it does this.

Complaint handling

65. I noted above where the Provider’s reply to the complaint fell short of good practice in not addressing a point made by Mr B which formed part of his complaint. But I also note it took the Provider three months to reply to Mr B’s complaint.
66. Currently the Provider’s website does not say in what timescale it aims to reply to complaints. But when it acknowledged Mr B’s complaint it said that it aimed to respond in 28 days, whenever possible.
67. This timeframe is not a legal requirement. There are circumstances therefore when the Provider may reasonably exceed it and we would not find fault. But I considered the delay in this case unjustified from what I read about the nature and scope of the investigation. And even though the Provider mitigated some of the frustration caused to Mr B by keeping in touch with him about the delay, I still find its complaint handling caused injustice to him. As it inevitably added to his time and trouble in seeking resolution to his complaint.

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Recommended Action

68. To remedy the injustice caused to Mr B, I recommend that within 20 working days of a decision on this complaint the Provider:
1. provide an apology to Mr B, accepting the findings of this investigation. The LGSCO publishes guidance on remedies setting 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;
2. make a symbolic payment to Mr B of £300 in recognition of his distress, time and trouble.
69. To learn lessons from this complaint, I also recommend that within three months of this decision, the Provider:
1. revise its ‘my last wishes’ form to remove the sub-heading “my will” on page 12 of the document and to include a record on whether it has consent to share any of the content of the form with next of kin, wider family etc before the person dies;
2. compile guidance for its staff on supporting users of its service to complete the ‘my last wishes’ form, to include:
• what to do if someone does not have a will but may wish to leave one;
• advice on how it will consider supporting someone to fulfil specific last wishes; for example where someone has expressed a wish to undertake a final visit somewhere and how it will record that;
• advice on the extent of the Provider’s ability to arrange a funeral and make spending decisions around such arrangements where it was an appointee for the deceased;
3. provide a briefing to staff responsible for helping to complete the ‘my last wishes’ form to explain any changes to the form arising from action set out at point a) above and guidance issued as a result of action at point b) above. The briefing can be in person, or in writing, at the Provider’s discretion.
70. The Provider has indicated a willingness to accept our findings that it was at fault. Further that it will offer a limited apology to Mr B, accepting that aspects of the ‘my last wishes’ form are potentially confusing and the processes around completion of the form could have been better, as could its complaint handling. However, it has indicated that it does not consider any remedy should extend to a symbolic payment after noting Mr B’s view the form should be considered a legally binding will, which it strongly resists. It says:

• “the legal position is very clear on what constitutes a legally binding will, the process for creating one, who is the next of kin /  legal executor, and what happens in the event of intestacy. Whilst AFG acknowledges the ‘my last wishes’ process and form may in part have been interpreted differently by Mr B, it is not AFG’s role or responsibility to ensure individuals are knowledgeable in such complex legal matters. This remains the responsibility of individuals themselves, their legal advisor, or their legal representative (guardian, deputy etc..) where they lack capacity.”

71. We expect the Provider to write to us in response to these recommendations and provide evidence of compliance with any recommendations it has agreed to.

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Final Decision

72. For reasons set out above, I find fault by the Provider caused an injustice to the complainant, Mr B. I have recommended action I want the Provider to take to remedy that injustice. While the Provider has not agreed to accept all recommendations at this stage, we have completed the investigation inviting it once more to do so.

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Investigator's decision on behalf of the Ombudsman