London Borough of Hounslow (23 014 371)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 30 Jul 2024

The Ombudsman's final decision:

Summary: Mrs Y complained about the way the Council supported her late relative Mr X with his finances and other affairs. The Council was not at fault for not involving Mrs Y in Mr X’s finances or in the support it provided to Mr X for arranging a solicitor. It was at fault for delay in actioning Mr X’s request that it support him with his finances but this did not cause a significant injustice. The Council was at fault for the delay in responding to Mrs Y’s complaint for which it has already apologised.

The complaint

  1. Mrs Y complained the Council:
      1. would not allow her to support her late relative Mr X with his finances and wrongly told her the Council was dealing with these.
      2. failed to arrange the solicitor Mr X requested and failed to provide a receipt for the solicitor’s services.
      3. took Mr X’s passport and credit cards from his mother’s house and did not return them or cancel the cards.
      4. told her to stop emailing and was rude to her.
  2. She also complained a care worker stayed in the room when she visited Mr X at the care home and that Mr X appeared sedated.
  3. Mrs Y says this caused her distress and upset and meant she was not able to properly support Mr X.

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The Ombudsman’s role and powers

  1. 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)
  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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended). Some of the issues Mrs Y raised happened in 2021. It was open to her to raise her concerns with us at the time and there are no good reasons why she did not come to us sooner. However, I have exercised my discretion to consider what happened since January 2022 as some of the matters Mrs Y was not aware of until after Mr X’s death.
  3. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:
    • any injustice is not significant enough to justify our involvement, or
    • we could not add to any previous investigation by the organisation, or
    • we cannot achieve the outcome someone wants, or
    • there is no worthwhile outcome achievable by our investigation.

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

  1. 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

  1. I have investigated points 1a) and 1b) and will address these later.
  2. I have not investigated point 1c). The Council and Mr X visited Mr X’s mother’s house in 2021 to obtain his passport and credit cards. If Mrs Y had concerns about the visit, it was open to her to complain about it at the time. It is too long ago for me to investigate now. If I were to investigate it is unlikely I would say the Council was at fault for not returning the credit cards/passport to Mr X’s mother. The passport and credit cards were Mr X’s possessions, so it was for Mr X to decide where to keep them. Mrs Y says she had to cancel the cards after Mr X’s death and the Council had not cancelled them. It was for Mr X to decide whether or not he wanted his cards cancelled. As Mr X’s next of kin it was not fault for Mrs Y to have been asked to cancel the cards after his death.
  3. I have not investigated point 1d). the Council apologised to Mrs Y for this following her complaint. This was appropriate and there is nothing more I could achieve by investigating this further.
  4. I have not investigated point 2 above that a care worker stayed in Mr X’s room when Mrs Y visited. This related to one visit in February 2023. The Council has already confirmed it did not instruct care home staff to stay in the room with Mr X and that the care home has confirmed this. Mr X has since died so I do not see what I can achieve by investigating this issue further.
  5. I have not investigated that Mr X appeared sedated. The Council in its complaint response to Mrs Y confirmed Mr X did not take any sedatives but this could be related to other medication or his medical condition. It was for a medical professional to decide Mr X’s medication and we cannot investigate the actions of medical professionals.

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How I considered this complaint

  1. I have considered the information provided by Mrs Y and have discussed the complaint with her and her representative, Ms Z.
  2. I have considered the information provided by the Council in response to our initial enquiries and the relevant law and guidance.
  3. I gave Mrs Y and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance

The Mental Capacity Act

  1. 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.
  2. 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.
  3. 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.
  4. An assessment of someone’s capacity is specific to the decision to be made at a particular time.

Lasting Power of Attorney

  1. 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.
  2. There are two types of LPA: Property and Finance LPA and Health and Welfare LPA. The Property and Finance LPA gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. The Health and Welfare LPA gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
  3. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.
  4. An individual may choose to end an LPA by making a written statement called a deed of revocation and sending it to the Office of the Public Guardian (OPG).

Background

  1. Mr X lived at home with his mother. Mr X had physical and mental health conditions and received a package of home care support. In July 2020 the Council assessed Mr X’s ability to manage his finances. It concluded he had capacity to manage his money and finances.
  2. In March 2021 Mr X agreed for his mother, Mrs Y and two other relatives to be his lasting power of attorneys. Around this time safeguarding concerns were raised and the Council referred Mr X for an independent advocate. The Council carried out a needs assessment. This noted Mr X wanted to be the primary contact about his care and he did not want others to speak for him.
  3. Mr X’s mother became terminally ill and struggled to support him. Mr X had a fall at home and after a hospital admission he moved into a care home. The Council reviewed Mr X’s needs assessment and noted he needed a 24 hour nursing placement.
  4. After a hospital stay in late 2021 the care home refused to let him return. Mr X therefore moved to another care home.
  5. In October 2021 Mr X met with his advocate and his social worker. Mr X said he wanted everyone but his mother removed from his LPA. He was happy for Mrs Y to be his guardian but not his LPA. Mr X said that if his mother died he would like the Council to look after his finances.
  6. In November 2021 Mr X revoked the power of attorney for all his relatives except his mother. The Council arranged with Mrs Y to collect Mr X’s passport and credit cards from his mother’s home. In a further meeting with the social worker in December 2021, the social worker noted Mr X was happy with the revocation. He still wanted Mrs Y as his next of kin but did not want her making decisions about his care.

What happened

  1. In early 2022 Mrs Y emailed the Council. She said Mr X had requested she apply for a new LPA. She said she was happy to apply if the Council would support the application. It responded that it would speak with Mr X to discuss his wishes. Mrs Y further emailed the Council to advise that Mr X had requested that she be the executor of his will.
  2. In early 2022 Mr X’s mother died.
  3. In February 2022 Mr X met with Council officers from its safeguarding team, his social worker and his advocate. The advocate’s notes record Mr X wanted the Council to manage his finances and Mrs Y to be his guardian. He did not want contact with Ms Z or her sibling. He wanted to amend his will. The care home agreed to support him to arrange a solicitor.
  4. In May 2022 Mrs Y contacted the Council to say that she had heard nothing further about Mr X’s will or LPA. The Council responded and advised it had held a safeguarding meeting with the outcome that the Council would manage Mr X’s finances and the care home would support him to arrange a solicitor to update his will. Mrs Y visited Mr X. She made a video recording of Mr X where he stated he wanted Mrs Y present when he did his will and would contact his solicitor through the care home manager.
  5. In late September 2022 Mrs Y told the Council Mr X wanted to move nearer to her. It said it would be for Mr X to request this and it would contact her further if he did. In November 2022 Mr X met with a solicitor to write his will.
  6. In December 2022 the Council carried out a mental capacity assessment about Mr X’s capacity to make decisions about his property and financial affairs. It concluded he had capacity to make such decisions and was able to understand, retain and weigh up the information to make an informed decision. It also reviewed his needs assessment and noted Mr X’s wishes regarding contact with relatives. He also wanted to move to a care home nearer to Mrs Y but wanted to ensure this was done correctly and not rushed. Mr X did not want information shared with Ms Z and wanted the Council to manage his finances. In view of his vulnerability and health needs the Council agreed to refer Mr X for support with his finances.
  7. Mr X died in Spring 2023. Family members placed a caveat on Mr X’s will.
  8. Mrs Y complained to the care home about a cash withdrawal made by Mr X for which there was no receipt. The care home responded that the payment was for the solicitor who drafted Mr X’s will and a copy of the invoice could be requested from the solicitor. The care home later went on to explain that Mr X was responsible for handling his own finances but was in the process of handing this over to the Council. It said he had capacity to do so and did not want his family involved in his finances.
  9. Mrs Y and her representative complained to the Council in August 2023. They raised a number of concerns including that there was no receipt for a cash withdrawal from Mr X’s account, the Council had not arranged to manage Mr X’s finances, a care worker stayed in the room when Mrs Y visited and that the Council did not arrange the solicitors Mr X requested.
  10. The Council responded in December 2023. It apologised for the delay. It said it was bound by Mr X’s decision that he did not consent to information being shared with the family and that he chose to restrict the family’s access to his information. It said:
    • It did not take over management of his finances.
    • it did not ask the home to monitor visits and the manager of the care home agreed this was correct. It said this sometimes happened when residents themselves request staff remain with them during a visit.
    • the cash was withdrawn at Mr X’s request and used legitimately for a purpose of his choosing.
    • neither the Council nor the care home selected or appointed a solicitor for Mr X although it did provide a list of solicitors in the area.
  11. Mrs Y remained unhappy and complained to us. Her representative provided a copy of an email from the care home which stated the cash withdrawal was used to pay part of Mr X’s solicitor’s fees and that a copy of invoices could be requested from them.

Findings

Mr X’s finances

  1. The records show that from early 2022 Mr X wanted the Council to manage his finances. I have seen no evidence the Council progressed this request until late 2022. Records from late 2022 again showed Mr X wanted the Council to handle his finances and not Mrs Y or another relative. The Council carried out a mental capacity assessment in December 2022 and was satisfied Mr X had capacity to deal with his finances. It agreed to support him with his finances due to his vulnerability, but this was not arranged before Mr X died. The delay in the Council arranging to support Mr X with his finances was fault. However, there is no evidence this caused a significant injustice as the care home supported Mr X with any expenditure he required. In any case as Mr X has died, any injustice caused to him cannot be remedied.
  2. Mrs Y has calls in which Mr X says he wants her support with his finances. She also believed Mr X had cancelled the LPA by mistake and wanted her to continue to support him. When Mrs Y raised this with the Council it met with Mr X to confirm his wishes. The records show Mr X wanted Mrs Y to support him as his next of kin but not with his finances. The Council was not at fault for respecting Mr X’s wishes.
  3. Mrs Y was unhappy about a cash withdrawal from Mr X’s account. The Council was satisfied the money was used by Mr X and at that time Mr X was managing his own finances. The care home told Mrs Y it was used to pay towards solicitor’s costs. The care home does not have an invoice. I do not know whether this is because one was not produced or was in Mr X’s rather than the care home’s possession. I am not investigating this further because the care home advised Mrs Y to contact the solicitor if she required a copy and it was open for her to do so. I have seen no evidence the money was misused or used in any other way than Mrs Y was advised so this did not cause a significant injustice.

Mr X’s solicitor

  1. Mrs Y has a video in which Mr X stated he wanted her present when he wrote his will and in which he named a solicitor which he later did not use. When Mr X wrote his will he used a different solicitor to that he suggested to Mrs Y. I am satisfied from the records that there were clear reasons for this, of which Mr X was aware, and this was not as a result of any action or interference by the Council or care home.
  2. There is a caveat on Mr X’s will. If Mrs Y has any concerns about the way this was drawn up then that is a matter best resolved through solicitors and not the Ombudsman.

Complaint response

  1. Mrs Y raised her concerns with the Council in August 2023. It did not respond until December 2023. This delay was fault and caused Mrs Y frustration. The Council explained this was due to staff illness and apologised which was an appropriate remedy for the injustice caused.

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Final decision

  1. I have completed my investigation. The Council was at fault for the delay in replying to Mrs Y’s complaint and for the delay in dealing with Mr X’s finances. It has already apologised to Mrs Y and the injustice to Mr X was not significant or cannot now be remedied.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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