Summary: Mrs Y complains the Council failed to take appropriate action in 2017 after she reported the alleged financial abuse of her father, Mr X. The Ombudsman finds the Council at fault for not conducting a full assessment of Mr X’s capacity after Mrs Y reported concerns. This caused distress to Mrs Y, which the Council has already proposed to remedy with a payment of £500. The Ombudsman finds this remedy is suitable and we do not recommend anything further.

The complaint

1. The complainant, whom I will call Mrs Y, complains:
• the Council failed to progress a safeguarding concern she raised in August 2017 about the alleged financial abuse of her father, Mr X;
• the Council’s mental capacity assessment of Mr X, completed on 1 September 2017, was not conducted correctly; and
• a social worker signed to witness Mr X’s signature on a ‘Deed of Revocation’ for a Power of Attorney.
2. Mrs Y says that fault in the Council’s actions prevented early identification of the alleged financial abuse and, as a result, large sums of her parents’ money cannot be accounted for.

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What I have investigated

3. I have investigated the complaint from Mrs Y’s perspective and considered her claimed injustice only. I have not considered the alleged impact on Mr X for the reasons explained at the end of this statement.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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

6. During my investigation, I have:
• Discussed the complaint with Mrs Y and considered any information she submitted;
• Made enquiries of the Council and considered its response;
• Consulted the relevant law and guidance around mental capacity, referenced where necessary throughout this decision statement; and
• Issued my findings in a draft decision statement and invited comments from Mrs Y and the Council. I considered any comments received before making a final decision.

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What I found

7. 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 themselves.
8. Section 2(1) of the Mental Capacity Act states: “For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.
9. This means that a person lacks capacity if:
• they have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and
• the impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.
10. 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. 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:
• 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?

What happened

11. Mr X had a heart attack in 2017 which caused injury to his brain and temporary cognitive impairment. Mr X was, at the time, in a relationship with his neighbour. Mrs Y suspected the neighbour – whom I will call Ms Z – was emotionally and financially abusing Mr X. Mrs Y raised safeguarding concerns with the Council in August 2017.
12. Shortly after receiving contact from Mrs Y, a social worker visited Mr X to asses his mental capacity. This test would help find out whether Mr X had the capacity to make decisions about his financial affairs. Unknown to Mrs Y at the time, the visit took place at Ms Z’s home. Ms Z was present during the visit.
13. The Council’s case recordings show the social worker had formed an opinion of Mr X’s capacity before visiting him. After a telephone conversation with Mrs Y on the morning of 4 September 2017, the social worker noted: “[Mr X] has capacity with no impairment of the mind or brain”. The social worker did not complete a capacity assessment during his visit, so it is not clear how he reached this view.
14. The notes of the meeting show some discussion around Mr X’s wish to revoke the Power of Attorney (POA) which named both of his daughters. The social worker witnessed Mr X’s signature on the ‘Deed of Revocation’ paperwork.
15. Mrs Y called the Council again on 24 October to relay further concerns about Mr X becoming increasingly confused and disorientated. Mrs Y told the Council that she felt Ms Z was coercive and controlling and motivated by Mr X’s finances. The Council considered there were no immediate safeguarding concerns, but asked Mrs Y to call again after her upcoming appointment with the police.
16. Two days later the Council received a phone call from the Police Constable (PC) dealing with the family’s case. The PC explained their view that the allegations made by Mrs Y may be founded, and that a crime against Mr X might have occurred. The PC said she would complete a report and arrange a joint visit with somebody in the police’s safeguarding team.
17. After meeting with Mrs Y, a different social worker decided: “my impression was that there is enough evidence to suspect control and coercion in this case. It does seem a disproportionate and out of character response for him [Mr X] to block all contact with his daughters… There is evidence to suggest he is emotionally and mentally vulnerable following some changes in his cognitive functioning… After discussing the case with [team manager] I have informed [Mrs Y] that this case will progress to a safeguarding investigation”.
18. Following initial investigations, the Council found large sums of money missing from the bank account of Mr X’s wife, who has dementia and lives in a care home. The Council also noted concerns about Mr X’s behaviour, commenting that he had answered the door to them in a state of undress.
19. On 29 January 2018 the Council completed a full assessment of Mr X’s capacity to make decisions about his financial affairs. The assessment concluded: “[Mr X] lacks the capacity to manage his own and his wife’s finances at this time. From evidence of the financial decisions he has made it seems possible that his decision making ability been [sic] negatively impacted by the brain injury he sustained in June 2017. Significant memory, processing and reasoning problems were evident in this assessment. The potential for him to regain his capacity needs to be discussed further with his medical care team and is unknown at this time”
20. After Mr X’s wellbeing appeared to decline, the Council arranged a short-term package of home care in 2018. The primary aim of this being to help Mr X with his mealtimes and medication; something which he had struggled to manage independently. However from the notes it shows that Mr X began to express views that the package of care was not needed.
21. In July 2018 the Council assessed Mr X’s capacity to make decisions about his care and support needs. The assessor felt that Mr X presented as having capacity to end his care package. The Council’s case recordings show the GP’s view that Mr X’s cognition had improved since his heart attack in 2017.
22. During the same month, the Council also ended its safeguarding investigation into the alleged financial abuse. The police had concluded its investigation because it felt there was not enough evidence to support a criminal charge. The Council found there was evidence of possible control and coercion, but closed the case on the basis that the risk to Mr X had been significantly reduced following an application to the Office of the Public Guardian (OPG) for Mrs Y and her sister to manage Mr X’s finances through a Lasting Power of Attorney.
23. Mrs Y remained dissatisfied that the Council had, in her view, failed to take appropriate action when she first reported concerns in 2017. She raised a formal complaint.

The Council’s response to Mrs Y’s complaint

24. The Council investigated Mrs Y’s complaint and made the following conclusions:
• The social worker should have conducted a capacity assessment in September 2017 following Mrs Y’s concerns about control and coercion. The Council upheld this part of the complaint.
• The social worker was not at fault for witnessing the ‘Deed of Revocation’ form signed by Mr X. The Council took this view after seeking advice from its Legal Services. The Council did not uphold this part of the complaint.
• The Council agreed to pay £500 to recognise the uncertainty and distress caused. It also agreed to:
1. arrange staff training about safeguarding and the Mental Capacity Act
2. ensure all officers are provided with guidance around the issue of control and coercion; and
3. issue guidance on the witnessing of ‘Deed of Revocations’.
25. Dissatisfied with the outcome, Mrs Y approached the Ombudsman. This is because she felt the actions proposed by the Council did not sufficiently remedy the injustice she had suffered. Mrs Y says she had significant legal bills as a result of the Council’s mistakes. She also says the Council’s actions caused irreparable damage in her relationship with Mr X.

Was there fault in the Council’s actions causing injustice to Mrs Y?

26. The social worker’s assessment of Mr X in September 2017 was not undertaken in accordance with the Mental Capacity Act and the Code of Practice. This was fault. The Council accepts the social worker’s reasoning was “slightly flawed” because he stated that Mr X did not have an impairment of the mind or brain.
27. This is despite having access to the Council’s case notes, which confirmed: “[Mr X] was admitted to [hospital name] following a collapse outside in town. He has suffered a hypoxic brain injury and subsequent cognitive impairment and thereby lacks capacity in relation to his care and treatment on the ward and with regard to how his future care and support needs are to be met… [Mr X] is sufficiently impaired enough cognitively not to be able to make such a decision as to whom he would want to act for him”
28. The Council accepts the social worker used incorrect grounds when assuming Mr X had capacity to make decisions about his financial affairs. The information available to the social worker should have prompted a full assessment of Mr X’s mental capacity.
29. I also consider that it was inappropriate for the social worker to meet Mr X in the presence of his alleged abuser because Mr X may have withheld important information. It was also inappropriate, in the circumstances, for the social worker to be involved in the ‘Deed of Revocation’. Although there is nothing in the law or guidance which prohibits social workers from witnessing these documents, the Council agreed that it could lead to allegations of inappropriateness and has issued guidance to its staff. The Ombudsman welcomes this proposal.
30. The Ombudsman must consider the effect of the Council’s fault, and whether there was any injustice caused to Mrs Y. The Council says, in its view, it is not possible to speculate what the outcome would have been had the social worker completed a full assessment in September 2017. I agree that it is not possible to conclude the outcome with any certainty as Mr X’s capacity has fluctuated.
31. Mrs Y says the Council’s failure to undertake a capacity assessment in September 2017 – which she says would have concluded that Mr X lacked capacity regarding his financial affairs – meant that Mr X was subject to financial abuse for longer than necessary. Even if the Ombudsman could say the assessment would have concluded that Mr X lacked capacity, we could not hold the Council responsible for any crime which Mr X may have been the victim of. It is for the police to decide whether Mr X has been the victim of financial abuse. The Ombudsman cannot reach a view on matters of a criminal nature.
32. Furthermore, it is open for Mr X to complain in his own right if he feels the Council’s actions left him vulnerable to abuse for longer than necessary.
33. With that said, I do consider the Council’s actions caused avoidable distress to Mrs Y. As we cannot speculate what the outcome of any assessment would have been, it is my view that the resulting injustice to Mrs Y is uncertainty. The Ombudsman’s ‘Guidance on Remedies’ suggests the following approach when remedying the effects of uncertainty caused by fault:

“Distress can include uncertainty: if, even after taking a view on the balance of probabilities as to the likely outcome, there is still doubt about how the outcome might have been different… A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified. Exceptionally, we may recommend more than this”

34. The Council’s offer of £500 is therefore suitable and in line with our guidance. If it has not done so already, the Council should pay this to Mrs Y within four weeks of my final decision. The Council has also provided evidence to the Ombudsman that it has invited staff to attend training on the issue of control and coercion. Because of this, I do not recommend any further remedy for the injustice identified.

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Final decision

35. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The Council has already proposed remedial action, which I consider to be a suitable remedy for the complaint.

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Parts of the complaint that I did not investigate

36. I have not investigated a complaint on behalf of Mr X; I have considered matters from Mrs Y’s perspective only.
37. Although Mr X lacked capacity at the time of the matters complained about, the Council’s files show its view – as well as that of Mr X’s GP – that Mr X has now regained mental capacity following recovery from his brain injury.
38. As Mr X is now deemed to have capacity, he can complain in his own right or provide written consent for a representative to complain on his behalf. Mr X has not provided his consent for this complaint, nor has Mrs Y provided any evidence to show that Mr X is now deemed as lacking capacity. It is for this reason that I have considered matters pertaining to Mrs Y only.

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Investigator's decision on behalf of the Ombudsman