• The complaint
• What I have investigated
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Decision

The Ombudsman's final decision:

Summary: The Council was not at fault in the way in which it discharged its duties as the appointed deputy for the financial affairs of Mr X’s mother, Mrs X, while she lived in care. There was an element of fault insofar as officers did not provide Mr X with a copy of the home’s comments on his complaints. But, this omission did not cause Mr X significant injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained in summary that between 2012 and 2017 when his late mother, Mrs X, was in care, the Council did not properly discharge its responsibilities as the appointed deputy for her financial affairs. In particular;
   • 1. the Council cannot account for the difference between the £6,783.20 it paid the care home, and the £4,313.94 the care home spent on Mrs X's behalf;
     2. many receipts provided by the care home were illegible and undated. The Council did not query these; or
     3. satisfy itself about the need for expenditure on items of furniture, items relating to personal care, and items intended for Mrs X's enjoyment. Mr X was concerned because from his knowledge of his mother, he did not believe these items could have contributed to her comfort and quality of life in any meaningful way.

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What I have investigated

2. I have considered matters from 2012 because Mr X said he was unaware of these issues until after Mrs X passed away late in 2017, when the Council returned the residue of her estate to him.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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 injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with a council’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

7. I have considered what Mr X has told me, together with information provided by the Council and the care home in response to my enquiries.
8. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

9. Statutory guidance permits councils to complete a financial assessment to determine how much an individual has to pay towards the cost of their social care. A personal expenditure allowance is deducted from any assessed income. This is the minimum amount of spending money individuals are allowed to enable them to pay for personal items such as toiletries, newspapers, cigarettes and treats.
10. The minimum weekly allowance was £23.50 up to April 2013, it then increased to £23.90 until April 2014, and £24.40 until April 2015. It has remained at £24.90 since that date.

Background

11. Mrs X lived in the home from December 2012 until she passed away in November 2017. She suffered from profound deafness and advanced dementia. Mrs X was unable to express any wishes with regard to her personal expenditure. The Council held deputyship throughout this period in accordance with the wishes of Mr X and his brother.

What happened

February – April 2018

12. At the end of February, the Council’s Client Financial Services (CFS) Team sent Mr X a cheque for the sum of £8,368.36. This was the sum remaining in Mrs X’s account. In mid-March CFS sent him a full statement of account, together with a further cheque for £1711.08. This was the final balance due to the estate.
13. Early in April, CFS sent Mr X information the care home had provided explaining its expenditure:
    • there two large items, both chairs. One of these, bought in December 2014, had cost £508.94. The other was a purpose built chair costing £1,375, bought in January 2017;
    • there was expenditure of £2,430 on personal items: and
    • the home still had to return a further sum of £122.60, which the Council had paid, but which staff had not recorded on the home’s system.
14. In rely, CFS asked the home for:
    • information about who had made the decision to purchase the chairs;
    • detailed invoices for last five months of Mrs X’s life;
    • why the home had transferred a cash top up of £400 after telling Mr X his mother was on end of life care;
    • why carers had spent £440 in shopping between then, and when Mrs X passed away; and
    • the reasons for small sums of expenditure in January and July 2015.
15. While awaiting the home’s response, Mr X continued to email CFS with other queries.

May 2018

16. Mr X sent two reminders early in May complaining about the length of time the home was taking to respond. He also asked if CFS had received the payment of £122.60 yet.
17. Shortly afterwards, the CFS manager emailed Mr X. She said:
    • Mrs X had found it difficult to balance when sitting. The Nursing Team and home manager had made a clinical decision that she needed a more suitable chair so she would not have to be nursed in bed, where she would be isolated. Mrs X had thrived on the interaction when she was out of bed;
    • the chair was made to measure. The home still had this, if Mr X wanted it;
    • in mid-June 2017, a nurse had decided to contact Mr X to make him aware that his mother was declining, as he did not visit regularly. But, Mrs X’s health fluctuated, and she had then stabilised again and lived for another four months;
    • meanwhile, carers had bought items to keep her clean and well presented;
    • the home had put together accounts for the last five months, as Mr X had asked. It had also provided receipts from July 2013 onwards, which identified every spend on behalf of Mrs X;
    • the home agreed it had misplaced two receipts from May and November 2017. It was prepared to reimburse £120 for these errors; and
    • a receipt that referred to the purchase of cigarettes was an error on the home’s part. This should have said toiletries. Another small spend was also on toiletries, and the home had attached a receipt for these too.
18. Mr X twice emailed the CFS manager in reply. He said:
    • he did not accept he reason given for the purchase of the purpose built chair. He considered the hone’s explanation for this was meaningless;
    • he still had no idea why the earlier purchase of a standard chair was necessary;
    • many of the receipts were illegible with descriptions missing and no dates. He provided a list of these. It looked as if they had been scanned to deliberately obscure some items and to omit dates;
    • he accepted that the issue of how much to spend on toiletries and clothing was subjective. But, Mrs X had been 89 when she was admitted to the home, and immobile from shortly afterwards. He did not spend nearly as much on these items himself;
    • he considered the home had wasted Mrs X’s money, particularly while she was confined to bed for the last five months of her life. He asked about expenditure on specific items such as shoes, CDs, and items for her room, that his mother could have had no use for;
    • he had gone every week without fail, and asked what the home regarded as regular visiting.
19. At the end of the month Mr X again emailed the CFS manager, saying he was disappointed that she had not yet taken up his concerns with the home. As the appointed deputy for Mrs X’s financial affairs, the Council should be concerned that it might have taken unfair advantage in the disbursement of her money.
20. The CFS manager responded confirming that she had passed Mr X’s concerns on to the home manager to reply to.

June 2018

21. Early in June, the CFS forwarded to Mr X an email the home had sent her, answering his questions. The email said:
    • Mrs X had needed shoes because she was still mobilising, albeit with assistance;
    • the items for Mrs X’s room were intended to personalise her environment and to make it less clinical. This was standard practice in care homes;
    • although Mrs X was hard of hearing, this did not mean that carers should not try to offer comfort, stimulation or at least background sounds she could listen to, as opposed to silence;
    • the home did provide its own bedding. The purchases of duvet sets were to replace bedding that became soiled due to incontinence. These were personal items that staff bought as part of caring for Mrs X’s psychological and emotional well-being;
    • Mrs X did become gravely ill and nursing staff had informed Mr X of this. But, Mrs X’s health had improved. Carers did not spend money for some months after this; and
    • before Mrs X became too unwell to use the lounge area, she was unable to use a “standard chair” because she was unable to sit in an upright position without falling or leaning forward or sideways; and
    • carers made purchases for Mrs X in good faith, and with her concerns primary to any decisions.
22. Mr X replied saying the home’s responses were unsatisfactory, and did not answer his specific questions. The CFS manager said she would forward his repeated concerns on to the home manager.
23. During mid-June, Mr X continued to email the CFS manager. He said:
    • the home had its facts wrong. It had taken £400 from Mrs X’s funds and spent a large sum on decorations, clothing and toiletries only 12 days after she became ill;
    • he was also unhappy about the Council’s lack of concern. It had acted simply as a post box; and
    • he had not yet received £122.60 which the home had said it would return to CFS.
24. The CFS manager responded that officers would raise a cheque for £122.60 that day. He should receive this during the next week. She said the home had confirmed that Mr X did visit on a regular basis. But the CFS manager did not forward to Mr X the home manager’s further comments.

The home manager had said:

1. • he believed Mr X was offering his own opinion on responses the home had already provided;
   • staff had not consulted him about personalising Mrs X’s room because he was an infrequent visitor, and hostile to attempts to contact him. Also, Mr X had relinquished responsibility for his mother’s finances, preferring the Council to exercise this;
   • the fact that someone was hard of hearing did not mean they should not try to offer auditory stimulation or relaxation in the form of CD music;
   • Mr X was querying receipts that were almost four years old. Paper documents like these were prone to degradation. It was also possible the date and time of issue were on the back. The Council could view them at any time;
   • the home had received regular payments for Mrs X’s use. If they had not spent this money, they might have been questioned about allowing it to build up in company accounts;
   • the home had made all purchases in good faith for Mrs X’s personal use and comfort and kept receipts. Most purchases were made some time before she passed away. Mr X could have questioned the expenditure at any time; and
   • he was willing to discuss matters with Mr X face to face, with a member of council staff present.

The Council’s complaint responses

25. Mr X subsequently made a formal complaint, to which the Head of CFS responded early in August 2018. She said:
    • in Mrs X’s case, her personal expenditure allowance started at £29.65 per week, and increased to £30.15 per week and then £30.65 per week, as the legislation was revised;
    • Mrs X spent an average of £16 per week while she lived in the home. Following her death, the home returned the balance of personal expenditure allowance to the Council. CFS had paid this to Mr X as his mother’s executor;
    • she supported the personalising of a room to avoid it having the appearance of an institution. It was important to meet personal needs. While some one might lack capacity, they could still be supported in making decisions about this;
    • The receipts Mr X was querying were almost four years old. He could have questioned expenditure on any of his visits to Mrs X, rather than waiting until after her death. He could also have asked the Council to relinquish its role of managing Mrs X’s affairs at any time;
    • as Head of Client Services, she was responsible for all the clients for whom the Council was Appointee or Court Deputy. She would question a care provider which was not spending the personal expenditure allowance; but
    • she accepted that the home could have kept more professional records. But, it had provided the information Mr X had asked for on how it had spent the money;
    • CFS was experiencing a large volume of work at present and had staffing issues. She was upholding his complaint that after five weeks, officers had still not provided him with a copy of the home’s most recent response;
    • there was clearly a learning point for officers. They needed to engage with care providers to keep clear records in respect of personal expenditure allowance; and
    • she and the home manager would be happy to meet with him to discuss any remaining queries.
26. Mr X emailed the Head of CFS in mid-August escalating his complaint. He said that although she had upheld that part of his complaint relating to CFS not advising him of the home’s latest response, he still did not know what this was. He further complained about the CFS manager not according him the courtesy of a call back or reply to an earlier email. Later in the month, he emailed the CFS manager again, asking if he would ever receive answers to his questions.
27. At the end of August, the Assistant Director responsible for Delivery, Assessment and Support Planning sent Mr X a final complaint response. But, this reviewed and upheld the Head of CFS’s conclusions.
28. Also at the end of August, the CFS Manager emailed Mr X. She said she had not replied sooner because she had needed to seek advice from the Head of CFS in the light of Mr X’s formal complaint. She understood that most of the queries he raised had been addressed in the complaint response.
29. Mr X emailed the Head of CFS saying:
    • he had only made a complaint because the CFS manager had failed to respond;
    • neither the Council nor the home had addressed his queries;
    • he was happy to attend a meeting. But, only if he received straight answers and not prevarication;
    • before he did this, he wanted a copy of the contract between the Council and the home, and of Mrs X’s personal service agreement.
30. Mr X subsequently made further complaints to the Head of CFS about the Council’s delay in making a copy of the contract available to him.

Was there fault and if so, was there injustice requiring a remedy?

31. The Council was paying Mrs X’s personal expenditure allowance at a higher rate than the statutory minimum, even though the home was consistently spending less than the statutory minimum on her behalf. Officers have told me this was because charging regulations at that time permitted an addition to the statutory personal allowance if a person was entitled to savings credit under DWP rules. But, this made no difference to Mr X, as I am satisfied the home did pay back the correct balance to the Council after Mrs X passed away. This was paid to Mr X as part of the remainder of Mrs X’s estate.
32. In holding deputyship for Mrs X, the Council was entitled to make financial decisions on her behalf, provided it did so responsibly and in her best interests. As the commissioner of her social care, it expected Mrs X’s care providers to use her personal expenditure allowance. I would have expected this expenditure to include items to ensure Mrs X’s comfort and cleanliness, to try to encourage her to interact with other people and stay active, and to make her surroundings as homely as possible.
33. It was not the role of either the Council or the home to seek to limit the use of Mrs X’s personal expenditure allowance so as to preserve her estate. It was also not the Council’s role to continuously audit the home’s expenditure on behalf of Mrs X. It did not have the resources to do this. As the Council has said, it was open to Mr X to question the home’s expenditure if he had felt concerned about this during his visits to his mother.
34. I note in particular what Mr X has said about the purchase of toiletries. But, the home would have needed to replace all of these frequently, as Mrs X suffered from incontinence.
35. In investigating Mr X’s complaints, the Council said the home’s record keeping could have been more professional. But, it did not find evidence of inappropriate expenditure. I share those conclusions.
36. I am also mindful of what the home has said, and the Council has accepted, about the receipts now going back several years. Consequently, some information might have been damaged or destroyed. I would not, therefore, expect the Council to now attempt to account for the home’s expenditure to the last penny. Not do I propose to do so.
37. Finally, I consider it was fault, as the Council has acknowledged, for officers not to provide the home’s further comments to Mr X when he asked for them. But, I do not consider this failure caused significant injustice to Mr X. There was little the home could add to what it had already said.

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Decision

38. For the reasons I have explained above, I will not pursue matters further. I have, therefore, completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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