Summary: The Council acted in line with sections 42 and 9 of the Care Act 2014 when responding to Ms A’s concerns of abuse of her late mother by an informal carer and so there was no fault.

The complaint

1. Ms A complains Westminster City Council (the Council) ignored concerns she raised about her late mother’s (Ms B’s) carer (Ms X).
2. She also complains the Council refused to provide her with a copy of Ms B’s care plan.

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What I have investigated

3. I have investigated the first complaint. My reason for not investigating the second complaint is at the end of this statement.

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The Ombudsman’s role and powers

4. The Information Commissioner's Office considers complaints about freedom of information, data protection and data requests. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive such complaints, we normally consider it reasonable to expect the person to go to the Information Commissioner.
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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. I considered Ms A’s complaint to us and documents described later in this statement. The parties received a draft of this statement and I took comments and additional information from Ms A into account.

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What I found

Relevant law and guidance

7. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national eligibility criteria to decide if the person is eligible for care. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
8. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (Care Act 2014, section 42)
9. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack mental capacity to make their own decisions. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
• because he or she makes 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.

The council must assess someone’s ability to make a decision, if that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

10. A Lasting Power of Attorney (LPA) is a legal document which allows people to choose another person or people to make decisions about their health and welfare and/or finances. The attorney is the person chosen to decide. An LPA is registered with the Office of the Public Guardian to be effective. The Court of Protection can order an LPA to be suspended or revoked.

What happened

11. Ms B was blind and elderly. She lived in a rented property and had a council-arranged and funded care package of three visits a day from a homecare agency to assist her with personal care and other tasks. Ms X also lived with Ms B as her unpaid carer. Ms X had Lasting Powers of Attorney for finances and health and welfare for Ms B.
12. Ms A and her late mother were not on good terms and did not see each other latterly.
13. Ms A told us in her complaint that Ms B was naïve and vulnerable and that Ms X manipulated Ms B to go against her family. Ms A told us and the Council that Ms X stole Ms B’s money and trashed her house.
14. In December 2018, Ms A wrote to the Council saying Ms X had been physically and mentally abusing Ms B. Ms A asked the Council to contact Ms B on her behalf. The Council responded saying it would start safeguarding procedures and would first speak to Ms B about the allegations in confidence. It also said it would suggest to Ms B she contacted Ms A directly if she wished to.
15. In January 2019, Ms A wrote to the Council saying Ms X had manipulated Ms B into transferring money. Ms A also alleged Ms X had falsified information on a Lasting Power of Attorney and the Office of the Public Guardian was looking into this. The Court of Protection suspended both LPAs.
16. Ms B’s social worker carried out a social care assessment for Ms B at the start of January. During the assessment, Ms A told the social worker that she did not want Ms B in her life. The assessment noted Ms X did all the shopping and meal preparation for Ms B and supported her with paperwork and finances. Paid carers also assisted Ms B with personal care. The assessment noted there were no concerns about Ms B’s memory or concerns about her ability to make decisions or plans. It also noted Ms B was happy with her care package, happy Ms X was living with her and wanted Ms X to help her with finances and to have access to her bank account.
17. Also in January, the social worker spoke to Ms B’s GP. The GP had seen Ms B at home a few days previously and had no concerns about Ms X abusing her. The GP was concerned that it might be harmful to raise the safeguarding allegations Ms A had made against Ms X with Ms B, because Ms B was in poor health and got very upset whenever anyone mentioned Ms A.
18. The social worker spoke to the care agency which had no concerns about Ms X.
19. The Council ended the safeguarding enquiry having made enquiries of the GP, care agency and reassessed Ms B’s care needs. The outcome was there was no evidence of abuse and no risk identified and Ms B had mental capacity to agree to Ms X living with her and providing her with support.
20. Ms B died suddenly at the end of January. The social worker spoke to the paid carers who had seen Ms B the day before she died. The carers reported Ms B had been in good spirits and the visit was uneventful.
21. The Coroner’s office arranged an autopsy and told the Council Ms B had died of natural causes related to heart disease.
22. In March 2019, Ms A wrote to the Council’s chief executive asking for a copy of the care arrangements for Ms B. She also asked if anyone had read out the message to her mother. She told the chief executive that the police were investigating Ms X.
23. Ms A got an injunction to prevent Ms X from taking Ms B’s property or money. She alleged Ms X stole money and property from Ms B. I understand the police are investigating at the time of drafting this statement.
24. Responding to Ms A’s complaint, the Council said it had no role in the management of Ms B’s estate and any legal action Ms B took was a private matter for her. The Council sent Ms A a form to fill in to access Ms B’s care records.

Was there fault?

25. The Council acted without fault because:
• It started a safeguarding enquiry and took appropriate steps to satisfy itself that there was no abuse occurring by liaising with health and care professionals who had regular contact with Ms B and seeking her views. This action was in line with section 42 of the Care Act 2014
• It reassessed Ms B and sought her views. Ms B was happy with her care arrangements, including with Ms X living with her, looking after her and managing her finances. This action was in line with section 9 of the Care Act 2014
• There was no reason to doubt Ms B’s mental capacity. So there was no mental capacity assessment required. This was in line with the principles of the Mental Capacity Act which say a person’s capacity is to be assumed unless there is good reason to doubt it. This does not include a person making an unwise decision.
26. I note the Court suspended the LPA’s. This does not call into question the validity of the Council’s actions.

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Final decision

27. The Council acted in line with sections 42 and 9 of the Care Act 2014 when responding to Ms A’s concerns of abuse of her late mother by an informal carer. There was no fault.
28. I have completed the investigation.

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Parts of the complaint that I did not investigate

29. I did not investigate the second complaint. Ms A sent us documents that indicate she completed and sent the forms to access her mother’s social care records. She says the Council has never replied. Ms A can complain to the Information Commissioner which is the body dealing with appeals against information requests. It is reasonable for her to complain to the Information Commissioner.

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Investigator's decision on behalf of the Ombudsman