Summary: Mr and Mrs B complained about the actions of the Council in respect of their friend Mrs D when she needed care and raised safeguarding concerns about her finances. We cannot find fault with the actions of the Council.

The complaint

1. Mr and Mrs B complain that Gloucestershire County Council (the Council):
• moved Mrs D (for whom Mr B had power of attorney for her finances) to a nursing home rather than allowing her to stay at home against her wishes and without consulting them; and
• investigated a safeguarding concern raised against them without telling them the allegations or giving them a chance to comment.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)

Back to top

How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr and Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Safeguarding

5. 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)

Mental Capacity Act

6. 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.

Mental capacity assessment

7. 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. 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.

Best interest decision making

8. 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.

Lasting Power of Attorney

9. The Mental Capacity Act 2005 introduced the Lasting Power of Attorney (LPA). 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.
10. Power of attorney is different, as it ends when the person concerned loses their capacity to make decisions about a particular issue.

What happened

11. Mr and Mrs B had been friends with Mrs D for many years. Mr B obtained power of attorney to help Mrs D with her finances. He involved a solicitor to ensure Mrs D was aware of the implications. Mrs D had lived for a long time in an upper floor rented flat with no lift access, which was becoming difficult for her to manage. She had arranged a carer on a private basis. Mr B says that Mrs D made the decision in the summer of 2018 that she should buy a more suitable flat. Mr B helped her with this process, and she purchased a flat in December 2018. Shortly after this Mrs D had a fall and went into hospital.
12. In January 2019 Mrs D disclosed to the hospital staff and her social worker that she wanted to give her niece lasting power of attorney over her affairs. She said she had bought her flat on the advice of Mr B and did not know the state of her finances. She did not wish to offend Mr B but would prefer her niece (as her only family member) to help her.
13. The social worker made a safeguarding referral to look further into the concerns Mrs D had raised about control of her finances. She also contacted an advocate to help Mrs D.
14. Mrs D returned home for one night in January 2019, but after another fall, she returned to hospital. Her mental and physical state had deteriorated by this point and the social worker considered that she would need a full care needs assessment before discharge.
15. The social worker visited Mrs D in hospital and spoke to Mr and Mrs B while she was there. Mr and Mrs B explained the history and nature of their relationship with Mrs D and raised concerns about the private carer in terms of possible financial abuse. The social worker explained that Mrs D had said she did not remember agreeing to Mr B managing her money or purchasing the flat and felt torn between them and her private carer. The social worker said that she did not consider Mrs D currently had the mental capacity, motivation or articulation to participate in discharge planning.
16. Later in January the social worker had further discussions with Mrs D about her wishes and her finances. She said she wanted to go home. The social worker explained this would have to be with 24-hour privately-funded care. The social worker was not sure Mrs D fully understood the financial implications of this. Mrs D said she wanted to know more about the financial activity on her bank account, but she did not feel there had been any financial abuse.
17. Mrs D was moved to a community hospital on 29 January 2019 for rehabilitation. The Council visited Mrs D to talk to her about the safeguarding referral. Mrs D confirmed that she would like to have more knowledge and input regarding her finances. She did not know how much money she had or how much her bills were. She could not remember agreeing to the power of attorney or asking Mr B to help her with her finances. She said she would like her niece to have power of attorney and to manage her finances. She still wanted Mr and Mrs B to visit her in hospital.
18. The Council began considering care options for Mrs D when she was fit to be discharged. These included going home with a care package or a residential home either near her home or near her niece. The advocate met her in February 2019 and discussed some of these options. At this point she was having periods of confusion and delirium and was at high risk of falling. The Council discussed the options with Mrs D and her niece.
19. In March 2019 the Council concluded that it was best for Mrs D to be discharged to a care home for respite care, given her fluctuating capacity and unsteadiness. It noted it would complete the safeguarding investigation once her condition had improved. It discussed the situation with Mrs D, who agreed she would not be able to manage at home as she needed more support than she did previously and was happy with the proposed plan.
20. The Council planned to discharge Mrs D temporarily to respite care in its area with a longer-term view to find a place nearer to her niece.
21. In March 2019 Mr B contacted the Council regarding Mrs D, following contact from the social worker regarding release of Mrs D’s documents. He expressed concerns that neither he nor his wife had been consulted about plans for Mrs D, despite being close friends for many years and he was unsure about passing over Mrs D’s financial documents when no-one had legal authority for her. He said the Council should confirm that Mrs D did not have capacity to make decisions for herself.
22. The Council replied the same day. It acknowledged that Mr and Mrs B had provided Mrs D with long-term friendship and support and help with financial management at her request. But when Mrs D was in hospital and capable of making a decision, she said she wanted her niece to support her with her finances. More recently Mrs D had presented as confused and the Council did not consider she had the capacity to make decisions or answer questions about her finances.
23. The Council suggested it would be best for her financial paperwork to be returned to her flat, so when she was ready, she could be supported to go through it. The Council did not consider it was appropriate to assess her capacity until she was settled in respite accommodation. The Council said in the event that Mrs D did not regain capacity the Council would follow the best interest process in accordance with the Mental Capacity Act 2005. The Council said that it considered Mr and Mrs B were acting in Mrs D’s best interests and Mrs D had not made an allegation of wrong-doing.
24. Mrs B contacted the Council in early April, raising concerns about the respite care and saying that Mrs D would have wanted (and could have afforded) to go home with 24-hour care. She complained that this could have happened if her and Mr B had been consulted. The Council replied saying that their views had been taken into account, but Mrs D’s niece was the main contact as she was next of kin
25. Mr and Mrs B raised further concerns about the safeguarding enquiry, believing it to have been based on gossip and lies and said that they had not had a chance to respond to the allegations.
26. The Council visited Mrs D on 18 April 2019 to assess her capacity. It concluded she was confused and not able to make decisions regarding information sharing, care-planning or the safeguarding issue. Mrs D did say she wanted someone else to manage her money.
27. Mr and Mrs B raised a complaint: they asked for a copy of Mrs D’s capacity assessment and said they believed the things that had been said about them amounted to slander. They also said Mrs D wanted to go home.
28. On 1 May 2019 the Council visited Mrs D again with her safeguarding advocate to assess her capacity. Mrs D had deteriorated and lacked capacity to make decisions about the safeguarding issue. Her care needs had increased.
29. The Council responded to Mr and Mrs B’s complaint. It explained the reasons for the safeguarding referral and for Mrs D’s move to respite care. It clarified that no decision had been made in respect of her long-term care needs as it was waiting to see if her condition improved, hence the temporary placement.
30. Mrs B’s condition deteriorated and she returned to hospital in early May 2019.The Council concluded Mrs D did not have capacity to make financial decisions. She was moved to a nursing home nearer her niece for end of life care and died on 28 May 2019.
31. Mr and Mrs B made a further complaint on 10 May 2019 about the safeguarding referral: they believed this process had meant they were deliberately excluded from discussions about Mrs D’s care and has not been able to go home.
32. The Council responded to the complaint in July 2019. It fully explained the circumstances in which the safeguarding referral arose and how the Council responded. It noted the social worker had referred to the concern raised by Mrs D about her finances in a conversation with Mr B in January 2019 but had not confirmed it was a safeguarding referral. Mrs D’s condition then deteriorated and the safeguarding investigation was put on hold. The Council involved an advocate and noted that Mrs D had requested her niece take a lead role in her future plans. The Council had fully explained the situation to Mr and Mrs B in late March/early April. In respect of the care planning it explained that Mrs D had not been prevented from going home; it was rather her poor condition had prevented that for happening, as she needed a period of rehabilitation first in the hope that her confusion would improve.
33. Mr and Mrs B disputed the response further but in September 2019 the Council confirmed it could not say any more. Mr and Mrs B then complained to the Ombudsman.

Analysis

Mrs D’s care

34. I cannot identify any fault in the way the Council made decisions about Mrs D’s care. Between January and May 2019, it considered the views of Mrs D and her niece in the context of her deteriorating physical and mental state. It spoke to Mr and Mrs B on several occasions and was aware of their views by their emails. It kept Mrs D’s fluctuating capacity under review and made temporary best interest decisions while the situation was unclear. Unfortunately, Mrs D died before a long-term decision could be made.
35. I accept Mr and Mrs B feel they have been excluded but I consider the Council has properly taken account of their views. It did not make the decision based on Mrs D’s finances but on her care needs. In January 2019 Mrs D did say she wished to go home but by March 2019 she agreed it was not the best option.

Safeguarding investigation

36. I cannot identify any fault in the way the Council has dealt with this issue. It properly raised a referral following two disclosures from Mrs D when she had capacity. These were unprompted. She was concerned she did not know anything about her finances and wanted her niece to take over the management of them. She explained she did not wish to offend Mr B. The Council informed Mr and Mrs B of this request in January 2019 and gave full details of the reasons of the referral in March 2019. It made clear there was no allegation of wrong-doing and it considered Mr and Mrs B were acting in Mrs D’s best interests. Mr and Mrs B had the chance to respond to these issues and did so by telephone and email. The investigation was never completed due to Mrs D’s deteriorating condition.
37. Again, I understand Mr and Mrs B felt excluded from the process but the Council was acting on the wishes of Mrs D, expressed clearly and cogently when she had capacity, for her niece to take over management of her finances. Although the investigation was not completed, the Council made clear there were no outstanding concerns in respect to Mr and Mrs B.

Back to top

Final decision

38. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr and Mrs B.

Back to top

Investigator's decision on behalf of the Ombudsman