Kent County Council (19 004 637)

Category : Adult care services > Safeguarding

Decision : Not upheld

Decision date : 20 Mar 2020

The Ombudsman's final decision:

Summary: There is no evidence the Council failed to take proper action in response to Ms A’s safeguarding alerts, or act in Mr X’s best interests when he became homeless. There was a delay in applying for deputyship but that was not wholly in the Council’s control.

The complaint

  1. Ms A complains the Council did not act when she raised concerns that her father was being financially abused by his ex-partner. She also complains about a delay in managing his finances when he lost capacity to do so.

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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. 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

  1. I considered the information provided by Ms A and by the Council. I spoke to Ms A. Both Ms A and the Council had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

  1. 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. (section 42, Care Act 2014)
  2. During the safeguarding process the Council should consider the needs and wishes of the adult allegedly at risk, and assess any support and protection needs.
  3. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt.
  4. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
  5. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
  6. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that cannot be resolved in any other way. The Court of Protection makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions, and appoints deputies to make decisions for people lacking capacity to make those decisions.
  7. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf. A 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.
  8. If there is a need for continuing decision-making powers and there is no relevant EPA or LPA, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf.
  9. The Care and Support Statutory Guidance says of charging for residential care: “Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required.” (Ch.8.9)

What happened

  1. In early 2018 Ms A contacted the Council with concerns that her father was being financially abused by his longstanding partner. Ms A says she had seen her father irregularly over the years but was shocked to see how thin he had become.
  2. The Council investigated Ms A’s concerns in April 2018. An officer visited Mr X but Mr X told the Council he did not want the investigation to proceed. The Council says the police were also involved and visited Mr X but took no action. In November 2018 Ms X contacted the Council again with concerns but again, when the Council visited Mr X, no reasons were found to pursue an investigation.
  3. The Council became involved in Mr X’s care in November 2018 when his ex-partner said she could no longer support him. The Council undertook an assessment of Mr X’s mental capacity in January 2019 to determine if he had capacity to decide about his accommodation. It assessed that he lacked capacity to make that decision.
  4. In February Mr X fell and injured his head. He was taken to hospital where he was deemed to be homeless as his ex-partner said he could not return to her home.
  5. The Council held a Best Interest decision meeting (which Ms A attended) in April to decide on Mr X’s future accommodation. Ms A, who did not have Power of Attorney, said she did not want to be known as next of kin and did not want responsibility for her father’s finances. The meeting agreed a residential placement for Mr X. It also requested the Council financial department manage Mr X's finances as there was no-one else available.
  6. The Council says Ms A became her father’s financial agent on 12 April to assist in representing him.
  7. In June the Council responded to a complaint from Ms X about the way it had investigated her safeguarding concerns. It said Mr X had been clear on both occasions that he did not want the Council to pursue the investigation. The police found no reason to pursue an investigation either.
  8. The Council says Ms X then said she would manage Mr X’s finances and would apply for a deputyship. Ms X says she discovered it would be financially punitive for her to do so and so she told the Council in September 2019 she had decided not to proceed.
  9. Ms X complained to us the Council had not properly investigated her safeguarding concerns. She said her father’s bank told her no-one had made enquiries about his finances. She said she did not know who was responsible for her father’s care home charges. She said her father’s ex-partner had total control over him, had withdrawn his money in cash from the bank every week and then made him homeless.
  10. The Council says as no-one has responsibility for Mr X’s finances it has not so far been able to complete a financial assessment for his care, and he has been charged at a provisional contribution rate. At the beginning of November 2019, he was in arrears of £4189. The Council said then it was “progressing” an application for deputyship to the Court of Protection, but it understood there was a national backlog of cases.
  11. In February 2020 the Council obtained from Ms A the financial paperwork she held for her father and made an application to the Court of Protection.

Analysis

  1. The Council made enquiries when it received the safeguarding alerts but did not pursue any action after it had interviewed Mr X. The police did not pursue the matter either. I understand Ms A had concerns about the actions of her father’s former partner but neither agency which pursued enquiries found evidence to warrant proceeding to a full investigation.
  2. The Council did however become involved in Mr X’s care when it became clear he no longer had capacity to make the decision about his future accommodation. There is no evidence of fault there.
  3. The Council acted appropriately in reaching a Best Interests decision about Mr X’s accommodation.
  4. The Council acted on the understanding from Ms A that she would apply for a deputyship. When she decided not to proceed with that, the Council agreed it would apply instead. Although there was a delay in the Council taking steps to do so, there had already been a similar delay on the part of Ms A so I do not see that injustice has been caused in consequence.

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Final decision

  1. The Council was not at fault in the way it acted in respect of Mr X.

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Investigator's decision on behalf of the Ombudsman

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