Oxfordshire County Council (19 018 745)

Category : Adult care services > Safeguarding

Decision : Not upheld

Decision date : 10 Mar 2021

The Ombudsman's final decision:

Summary: There is no evidence the Council failed to consider the safeguarding alert properly. Mr X had capacity to make his own decisions about his visitors and who managed his finances.

The complaint

  1. Mr A (as I shall call the complainant) says the Council failed to safeguard his uncle Mr X, who is elderly and suffering from a degenerative disease, from his stepmother (Mrs K) who was seeking to abuse Mr X financially.

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What I have investigated

  1. I have investigated the complaint as set out above. I have not investigated any matters which fall within the remit of the ongoing police investigation.

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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 Mr A and the Council. I spoke to Mr A. Both Mr A and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments 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. The Care and Support Statutory Guidance says, “An enquiry is the action taken or instigated by the local authority in response to a concern that abuse or neglect may be taking place. An enquiry could range from a conversation with the adult, or if they lack capacity, or have substantial difficulty in understanding the enquiry their representative or advocate, prior to initiating a formal enquiry under section 42, right through to a much more formal multi-agency plan or course of action. Whatever the course of subsequent action, the professional concerned should record the concern, the adult’s views, wishes, and any immediate action has taken and the reasons for those actions….What happens as a result of an enquiry should reflect the adult‘s wishes wherever possible, as stated by them or by their representative or advocate.” (chs. 14.77 – 14.79)
  3. 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.

  1. 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.

There are two types of LPA:

  • Property and Finance LPA – this 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.
  • Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

 

 

  1. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
  2. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.

What happened

  1. Mr X is resident in a care home. He has a degenerative physical disease and a psychiatric condition, but he has capacity to make his own decisions about who visits him and who manages his finances. Mr X’s late and surviving brothers held power of attorney for his welfare: since the death of one brother (Mr A’s father), his sister-in-law Ms K has acted as having power of attorney for him.
  2. In February 2019 Mr A raised concerns raised concerns that Mr X was not being taken out into the garden as his uncle, the other LPA, had asked the care home not to do so for the sake of Mr X’s health. He also raised with the Council his concerns that Mrs K (his stepmother) was financially abusing Mr X. He alleged Mrs K had spent over £80,000 of M X’s money over a period of years to reduce his assets so that he would not have to pay for his own residential care. He said his uncle, the other LPA, was in poor health and had not involved himself with Mr X’s affairs.
  3. The Council advised Mr A to raise his concerns about financial abuse with the police, and to apply for LPA in his own right so he could support Mr X in the future.

The first safeguarding investigation

  1. The Council began a safeguarding investigation as there were concerns about Mrs K’s failure to notify the Office of the Public Guardian (OPG) about the death of her husband who held the LPA for Mr X.
  2. The Council spoke to the care home manager who said there were complex family dynamics with allegations and counter-allegations about financial abuse. The manager said Mr X did not want for any personal items and Mrs K visited regularly and ensured he had what he needed.
  3. The social worker to whom Mr A reported his concerns also advised the care home that Mr X had capacity and could make his own decisions whether to go into the garden or not. The social worker passed on his concerns about this to the safeguarding team.
  4. The safeguarding team spoke to Mr X. He was unclear what had happened to his money but thought some of it had been used to buy a property. He said as far as he knew Mrs K did not have access to his bank account and his money should still be there.
  5. Mrs K told the Council she had used her own money to pay for Mr X’s personal items since her husband died (Mr A says this was usually out-of-date food which had to be thrown away). She confirmed to the Council that she held a deputyship for Mr X’s finances but said she did not want to access his money. She said over £70,000 had been spent on Mr X’s care (the Council noted from the evidence it saw that Mr X had paid £1000 a week for personal care from an agency before he went into residential care). She also explained to the Council’s investigator what had happened to money which Mr A alleged she had spent on two mobility scooters for Mr X.
  6. Mr A queries why someone with a degenerative disease such as Mr X suffers from would need two mobility cotters: he also says there is no proof of their purchase. He does not believe the cost of care prior to Mr X’s admission to the care home was of the amount Mrs K says.
  7. The safeguarding investigation recommended that the allegation of financial abuse was not substantiated. The investigation form concluded: ‘There are extremely complex family dynamics within (Mr X’s) extended family…Since the passing of (Mr X)'s father and one of his brothers who held LPA there have been numerous cross allegations of financial abuse between the remaining family members. The extended family do not speak to each and are all taking legal action against each over perceived mismanagement of the deceased brothers estate.’
  8. The Council concluded the safeguarding investigation. The safeguarding investigator noted Mr X was happy the Council had asked Mrs K to explain to him what had happened to his money. Mr X did not consider he was being harmed or was at risk of harm from Mrs K or his brother, the other deputy.
  9. The Council also concluded it should advise the care home manager that Mr X had capacity to make his own decisions about sitting in the garden.

The second safeguarding investigation

  1. In September 2019 Mr A raised more concerns. He said Mrs K was causing Mr X anxiety when she visited, to the extent that the care home staff said they had to check on him after her visits to make sure he was calm. He alleged Mrs K had told Mr X his will had ‘expired’ and he needed to make a new one, but she would not give him a copy of his existing will. Mr A says it was the safeguarding investigator who told him there were doubts about the will.
  2. Mrs K then made a counter-allegation that Mr A was putting pressure on Mr X to make a new will with himself as a beneficiary. Mr A said he wanted to support Mr X to make a new will as Mr X was worried because he could not find out what was in his existing will. Mr A also raised concerns that Mrs K was psychologically abusing Mr X.
  3. The Council decided to investigate the fresh allegation by Mr A but take into account Mrs K’s remarks as well. It noted on the investigation form concerns that Mr X still did not know the full extent of his finances, and Mrs K had not carried out the actions required of her by the social worker at the conclusion of the previous investigation, to explain to Mr X what had happened to his money.
  4. The care home manager said she was determined to look after Mr X without becoming involved in family disputes: she said in her view Mr X had capacity to make his own decision to change his LPA if he wanted.
  5. Mr X said he wanted to continue to have visits from both Mrs K and Mr A. He said he wanted to know what was in his current will so he had an opportunity to make changes to it to benefit his brothers’ children. Mr A says both the care home manager and the social worker heard Mr K say he did not want anything more to do with Mrs K, but separately recorded Mr K was happy to see any of his family.
  6. The safeguarding investigator assessed that Mr X had capacity to make his own decisions about his LPA arrangements. He contacted the police who were unable to say whether they were investigating psychological abuse by Mrs K.
  7. The safeguarding investigator told Mr A there was no evidence Mr X was being psychologically abused by Mrs K. Mr A said the investigator had not asked the right questions and he intended to complain about the investigation.
  8. The Council concluded Mr X was protected from abuse by the actions of the care home, and by his finances being looked after by his LPA. The safeguarding investigation was closed.
  9. Mr X changed his LPA to his other brother, Mr A’s remaining uncle, who had similar concerns about Mrs K.
  10. In November 2019 Mr A complained to the Council about the safeguarding investigations. He complained that the Council had breached confidentiality by disclosing some details to the alleged abuser; that there had been a delay in making enquiries and that the Council had not managed the enquiries properly. In January 2020 Mr A contacted the Council again and said there was evidence of coercive control of Mr X by Mrs K. He says he notified the Council that Mrs K had taken from Mr X’s room a letter from the Office of the Public Guardian addressed to Mr X, but the Council was not interested.
  11. The Council responded to the complaint in January. It said it was not always possible, while making necessary safeguarding enquiries, to keep all information confidential but there was no evidence that any information had been disclosed to Mrs K. It said the initial enquires had been made on 9 September; further enquiries on 28 October. It acknowledged there was some delay but said it prioritized enquiries according to the level of risk perceived to the individual. Finally it said it was satisfied it had met the statutory requirements in the way the investigation had been conducted. It had spoken to Mr A and to the police as well as the care home manager, Mr X and Mrs K.
  12. Mr A contacted the Council again in February 2020. He said he had plenty of proof of the abuse being suffered by Mr X. He complained again about the way the matter of Mr X’s will had been handled and the control he said Mrs K had over Mr X.
  13. The Council sent a final response to the complaint on 24 February. It said Mr X’s will was a civil matter as he had capacity to make his own decisions about it: he had now amended it as was his right. The financial abuse allegations had been investigated by the police and no criminal case had been made. It said there was no evidence from the police that Mr X was at risk. It concluded “As (Mr X’s other brother) now holds LPA for (Mr X), it is the councils view, in the absence of evidence to the contrary that Mr X’s financial affairs are safeguarded’.
  14. Mr A’s uncle (who now held the LPA for Mr X) asked his MP to complain to the Council on his behalf.
  15. The Council responded to the MP in April 2020. It said three different social workers had visited Mr X on three separate occasions to establish his wishes. It said “(Mr X) has full mental capacity and is therefore able to decide; who visits him, who manages his finances and the content of his Will…. There are no criminal investigations outstanding and no evidence or any additional information to suggest any abuse, theft or coercion has taken place.”
  16. Mr A complained to the Ombudsman.
  17. The Council says its role in this matter was to support and protect Mr X. It says, “as evidenced by the documents supplied, this has been done thoroughly. All safeguarding concerns were properly considered and investigated as appropriate.”
  18. Mr A has now moved Mr X to a different care home where he has settled. He says he has also ensured that his named contact cannot be changed with permission.

Analysis

  1. The Council responded to Mr A’s concerns about Mr X appropriately and in line with the guidance. On the occasion when there was a delay in making further enquiries, the Council points out it prioritizes people according to risk. As Mr X had capacity to make his own decisions, and was protected from abuse within the care home, there was no need to consider he was at urgent risk. There is no evidence of fault in the way the Council investigated the safeguarding concerns.
  2. Mr A remains of the view that Mr X is the victim of coercive control. However, Mr X was able to change his will, move care homes and change his LPA.
  3. It was clear from the case recording that Mr X said he was happy to be visited by all members of his family.

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Final decision

  1. I have completed the investigation as I find no evidence of evidence of fault on the part of the Council.

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Investigator's decision on behalf of the Ombudsman

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