The Ombudsman's final decision:
Summary: The complainant, Mr B, said the Council and the NHS Trust failed to safeguard his vulnerable adult brother from financial abuse between 2010 and 2015 when he lived in a supported housing placement. We found the Council had sufficient safeguards in place in line with its safeguarding responsibilities. The Trust had a policy in place to safeguard patients’ property and valuables but its investigation highlighted weaknesses around managing patient’s finances and cash handling. The Trust’s investigation is enough to remedy doubt the complainant may have about its handling of his brother’s finances. The Trust agreed to our recommendations and will tell us what it has done to improve since it became aware of the weaknesses in its processes. It will also write to the complainant.
- Mr B complains on behalf of his adult brother, Mr C, who was placed in a supported living placement under the terms of section 117 of the Mental Health Act 1983. Mr B alleges his brother was financially abused between 2010 and 2015. The placement was jointly funded by London Borough of Islington (the Council) and a CCG under the terms of s117 of the MHA 1983. He said the Council was his brother’s Court of Protection appointed Deputy for property and financial affairs from November 2015 to November 2016. Mr B complains the Council as the funding authority and later as Deputy and, Camden and Islington NHS Foundation Trust (the Trust), that managed the placement, mismanaged his brother’s finances, and did not safeguard him from financial abuse while he was under their care.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1)).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have considered information provided by the organisations named in this complaint and information from the complainant provided in writing and by telephone. I have also considered the law and guidance relevant to this complaint.
- Although the events giving rise to this complaint occurred some time ago Mr B became appointee for Mr C around 2016. Following his own investigation and examination of Mr C’s financial affairs he complained to the Trust once he became aware there was a problem. He made a separate complaint to the Ombudsmen about another matter which was investigated in 2018. We have therefore exercised discretion to investigate this complaint now.
- The complainant, the Council and the Trust were given an opportunity to provide comments on a draft of this decision.
What I found
Legal and administrative background
- Under the terms of the Mental Health Act 1983, a patient who has a mental disorder and refuses treatment may be detained for treatment if certain conditions are met. Prior to doing so, two qualified medical practitioners must assess the patient and agree the patient is suffering from a mental disorder of a nature or degree that the patient ought to be detained in hospital in the interests of their own health and safety and/or safety of others. In conjunction with the opinion of the two medical practitioners, an Approved Mental Health Professional must also agree the legal criteria for detention are met and that admission, considering all the circumstances of the case, is the least restrictive option in the best interests of the person.
- Section 3 of the Mental Health Act is for the purpose of providing treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention under section 3 can be renewed for another six months.
- Before the person is discharged, a social care assessment should take place to assess if they have any social care needs that should be met. People who are discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.
- 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)
- The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
The Code says, at paragraph 2.11, there may be cause for concern if somebody repeatedly makes unwise decisions exposing them to significant risk of harm or exploitation. The Code says this may not necessarily mean the person lacks capacity but further investigation may be required.
- If there is a need for ongoing decision-making powers and there is no Enduring Power of Attorney or Lasting Power of Attorney, the Court of Protection may appoint a deputy to make future decisions. It will state what kinds of decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) produces detailed guidance for deputies.
- An Appointee is responsible for managing a person's benefits, and for paying bills and managing a small and limited amount of savings in case of unforeseen circumstances. Appointeeship may be the best course of action if the person has a low level of financial assets, is in receipt of benefits and does not have any other sources of income. Applications are made to the Department of Work and Pensions.
- Both the Council and the Trust had safeguarding policies and procedures in place during the period complained about. The Trust also had a policy for safekeeping of service users’ property and other valuables while using residential services. Copies of these have been provided to the Ombudsmen.
- The Trust had a third-party in place who acted on its behalf to investigate allegations of fraud and bribery, to establish if any losses occurred.
- Mr C was detained in hospital under section 3 of the Mental Health Act in August 1997. He was discharged from section 3 and moved to a different hospital about two months later. He then moved to a rehabilitation project. Mr C moved again in 2004 to Placement X, a residential home, which was deregistered and changed its status to a supported living project in 2010. He remained living in the supported living project.
- Mr C remained subject to the care programme approach (CPA) once he was discharged from section 3. He remained in Placement X and it was presumed he had capacity to manage his finances.
- In May 2014, the housing provider for Placement X contacted the Trust to say that Mr C needed to submit paperwork to keep receiving his benefits. The housing provider said Mr C had rent arrears. The Department for Work and Pensions (DWP) had told the housing provider that it had written to Mr C about his benefits but had not received a response.
- Prior to the contact from the housing provider the Trust and the Council had presumed Mr C had capacity to manage his financial affairs. He had his own bank accounts which he managed himself. Mr C could place money and valuables in the office at Placement X.
- The Community Rehabilitation Team wrote to Mr C’s general practitioner after completing a review. In addition to other matters the letter referred to the difficulty Mr C was having in managing his finances. The letter said Mr C had not responded to letters from the DWP and staff had discovered he had been destroying his unopened mail. The letter said Mr C had agreed for his benefits to be managed through an Appointeeship after his capacity had been assessed. The Council’s Client Affairs Team would act as Appointee.
- A case recording from early November 2014 referred to Mr C refusing to buy food and staff having to use petty cash to pay for his meals. The care coordinator made a referral to the Client Affairs Team in mid-November 2014.
- In March 2015, the same care coordinator sent a letter to the Council’s Client Affairs Team. The letter confirmed a capacity assessment was previously completed and a referral made. The letter said the Client Affairs Team had put the referral on hold as it not received bank statements to show Mr C had less than £16,000 in savings. The letter referred to a family member who had opened a joint bank account with Mr C and had then transferred some of his savings. The care coordinator asked how long it would take to set up the Appointeeship.
- The Client Affairs Team replied a few days later and confirmed the Appointeeship was set up and had been confirmed with the DWP. The team was in the process of dealing with matters relating to Mr C’s benefits. The Client Affairs officer confirmed the team would not have the authority to communicate with Mr C’s bank about the alleged financial abuse because they did not hold Deputyship.
- The care coordinator went to visit the bank with Mr C. The care coordinator told the bank Mr C lacked capacity to manage his finances. The bank confirmed money had already been moved from Mr C’s account to his family member’s personal account. The bank agreed to investigate the matter further. The care coordinator raised a safeguarding alert.
- A social worker met with the police at Placement X a few days later. The police took information to continue with their inquiries. The social worker noted “agreed to speak to [Placement X staff]… around managing people who do not have capacity to look after their finances i.e. staff training around vulnerability”.
- A CPA letter sent to Mr C’s general practitioner from a psychiatrist also referred to Mr C’s lack of capacity to manage his finances. The letter said the team had made a referral to the Client Affairs Team in May 2014 to set up an Appointeeship. The letter confirmed a safeguarding investigation was underway.
- A psychiatric nurse contacted the Client Affairs Team in April 2015 to ask how long it would take for Mr C’s benefits to be reinstated. His claim had been closed by DWP due to a lack of communication likely linked to Mr C not opening letters. The Client Affairs Team confirmed they had received bank statements and asked for Mr C’s housing benefit number. The nurse provided this information and said, “I have concerns that if his benefits… are not in place soon then it could impact negatively on his mental state.”
- The Council received a CPA letter in April 2015, and this confirmed the Trust’s care coordinator had completed a mental capacity assessment to support the decision that Mr C lacked capacity to manage his finances.
- The Council became Mr C’s court appointed Deputy for finances in
December 2015 after it had made an application to the Court of Protection. The Council said it had applied to become Deputy because it did not feel Mr C’s family member was a suitable person to manage his finances.
- Mr B says the Council was discharged from Deputyship by the Court of Protection in November 2016. Mr B claims this was because the Council had mismanaged Mr C’s funds. At this stage Mr B became Mr C’s Appointee although not his Deputy for financial affairs. An order from the Court confirmed the Deputy (the Council) had applied for an order to revoke deputyship. The Court noted that
Mr C’s affairs could be effectively managed by an Appointee.
- Mr B says after becoming Appointee he discovered that regular unauthorised cash withdrawals had been made from Mr C’s bank account between 2010 and 2015. Mr B said the Trust’s staff at the placement had access to Mr C’s bank account card and pin number. Mr B raised concerns with the Council and the Trust from around 2017.
- The Trust wrote to Mr B at the end of 2017. The letter confirmed the Trust had met previously with Mr B to discuss what he referred to as ‘fraudulent transactions’ on his brother’s bank accounts. The Trust said it had asked its Counter-Fraud Team to undertake a review of the alleged fraud. This service was provided by a third-party. The Trust said the team had discussed the matter further with Mr C’s bank and interviewed two members of Placement X’s staff under caution.
- The Trust summarised the following points in its letter:
- The bank confirmed Mr C was not noted as a vulnerable adult on the account.
- Any disputes or concerns about alleged fraud or unauthorised transactions could be raised directly with the bank’s Fraud Team should Mr C’s family dispute the money. This could include an investigation into the loss of money.
- The period between 2010 and 2015 was when Mr C was under the care of the Trust but had access to his own bank card and banking information.
- The Council was referred to act as Appointee/Deputy because Mr C was at risk of eviction as benefits had stopped. This was addressed by the Council and benefit reinstated.
- The Council had closed Mr C’s bank account when it was his court appointed Deputy. Its Deputyship role ended when Mr B became Appointee.
Mr C’s cash cards and pin numbers in the office for safe keeping as this was a sensible precaution.
- The Parliamentary and Health Service Ombudsman previously decided to decline Mr B’s complaint which in effect was a claim for the misappropriation of funds. I am prevented from considering this issue now. The investigation has focussed on what arrangements the Trust and the Council had in place to safeguard Mr C and other residents from potential financial abuse.
- Mr B complains about the period between 2010 and 2015 and claims he noted discrepancies in his brother’s banking finances. Mr B’s own investigations has led him to conclude that the Trust’s staff were responsible for financial losses either by mishandling of funds or unauthorised withdrawals from Mr C’s account.
- Mr B said his brother was vulnerable and did not have the knowledge or the ability to manage his financial affairs. For this reason, he alleges his brother was financially abused.
- On the evidence I have seen so far, I agree Mr C is a vulnerable adult and for this reason he has remained under the care of the Council and the NHS as part of his section 117 aftercare plan. Although someone may be assessed as a vulnerable adult this does not mean they lack capacity to make specific decisions.
- Mr C’s care records show that he received benefits from 2010 onwards and had access to his bank account and cash for his personal use. The law says that capacity should be presumed unless there is evidence to the contrary. The Trust’s policy says, “staff in rehabilitation and recovery services should ensure that services users take as much responsibility as possible for their money and valuables.” This is in line with what the Mental Capacity Act says about presuming capacity. I have not seen evidence to indicate Mr C lacked capacity to manage his finances before 2014.
- The housing provider contacted the Trust about Mr C’s rent arrears and benefit problem in 2014. Given what was said at the time this was an indication, on balance, that Mr C was not managing his finances effectively. It was not clear whether this was because he was making unwise decisions or whether he lacked capacity.
- A capacity assessment was completed around this time and this determined Mr C lacked the capacity to manage his finances. It was then reasonable to expect the Trust to act in line with its policy which said, “while service users should be supported to manage their money as independently as possible staff need to ensure that where support is required systems are in place to ensure that the risk of financial abuse is minimised. This will include ensuring there is a safe place for service users valuables, clear record keeping procedures and in house checks to ensure any monies or valuables are fully accounted for.”
- The Trust made a referral to the relevant team at the Council so that Mr C could have someone to help him manage his finances. At the time it was felt an Appointee would be sufficient and this was likely due to the urgent nature of his benefits cancellation. Unfortunately, this arrangement did not provide the same level of protection as a Deputy.
- There does appear to be some delay in Mr C having an Appointee from 2014 as one was not appointed until months later. The Care coordinator had mentioned making a referral as early as May 2014, but it was not made until six months later. This delay is fault, but it is unlikely to have caused injustice to Mr C. There is no evidence to show he lost out on benefits once the Appointee dealt with matters with the DWP.
- When the care coordinator contacted the Client Affairs Team in March 2015 the team confirmed the Appointee was set up. By this stage safeguarding concerns relating to Mr C’s banking finances had come to light which the Appointee did not have the authority to deal with.
- The social worker who spoke to the police agreed to speak to Placement X’s staff around training for managing people who did not have capacity to manage their finances. It is unclear whether the social worker completed this task. In any case, the Trust later picked up on training issues for its staff when it investigated the alleged fraud.
- The Council applied to become Mr C’s Deputy, and this was to ensure Mr C had more safeguards in place. Although the Council could have applied to become
Mr C’s Deputy earlier, I do not consider it fault for it not to have done so. Mr C had less than £16,000 in savings and was in receipt of benefits. Therefore, initially having an Appointee in place was a satisfactory course of action. When Mr C’s finances was at risk of abuse the Council acted to change its status to Deputy.
- The Council became Deputy in late 2015 and near the end of the period Mr B complains about. Any complaint that Mr B had about the Council’s actions as Deputy should have been to the Office of the Public Guardian or the Court of Protection. It is not for the Ombudsmen to consider this issue now.
- When the third-party completed the investigation on behalf of the Trust it identified weaknesses in the Trust’s system and processes for managing patient’s financial affairs. This was despite the Trust having an appropriate policy in place relevant for Placement X. The report made several recommendations which highlighted improvements the Trust needed to make. These included the Trust acting to:
- ensure a consistent approach is adopted when monitoring and managing patients’ finances in particular cash handling.
- ensure the policy for ‘Safekeeping of Service Users’ Property and Other Valuables’ is reviewed and updated.
- ensure its employees undergo Counter Fraud and Bribery training and complete refresher training every three years.
- ensure a formal agreement is in place between the Trust and patients or their appointee to confirm financial management responsibilities.
- ensure Placement X was aware of any visitors to the premises.
It is unclear what action the Trust took to improve once the recommendations were made.
- Although the third-party investigation highlighted weaknesses, the third-party did not conclude the Trust was responsible for any alleged loss Mr C may have experienced. Having reviewed the report, it is reasonable to conclude the investigation was thorough and the investigation made a detailed analysis of
Mr C’s income and expenditure over a five-year period. We could not add to this investigation.
- It is unclear whether Mr B complained to his Mr C’s banking provider about the losses he felt he had incurred because of the alleged theft or fraud. This is an alternative route he can consider if he has not already done so.
- The Council and the Trust had appropriate policies in place to safeguard Mr C as well as other vulnerable adults in their area from financial abuse. Both authorities initially presumed Mr C had capacity to manage his finances and I do not find fault in the way they made this decision. Once there were signs Mr C could no longer manage his finances without support the Trust alerted the Council who then acted as Appointee and later as his Deputy. I have not seen evidence to suggest Mr C lost out on benefits or income when the Council undertook these roles. I do not find fault by the Council.
- The Trust completed a thorough investigation when Mr B complained about the alleged mismanagement of his brother’s finances by the Trust’s staff. The investigation was completed by an experienced third-party. This is enough to remedy doubt the complainant may have about the Trust’s handling of his brother’s finances. The Ombudsmen cannot achieve more.
- The Trust’s investigation highlighted weaknesses in its processes despite having a suitable policy in place. This is fault and the Trust should confirm how it has improved.
- Within one month of the final decision the Trust will:
- write to the Ombudsmen to confirm what improvements it has made since its third-party fraud investigator highlighted weaknesses in its system and processes for managing patients’ property and cash. The letter should focus on the five recommendations made within the third-party investigation report and confirm what action has been taken to improve, when this action was completed, the person responsible for the action and a date for review.
- write to Mr B to confirm the improvements it has made since he complained about the alleged misappropriation of funds.
- The Trust has agreed to the Ombudsmen’s recommendation. I have completed the investigation.
Investigator's decision on behalf of the Ombudsman