Summary: Miss X complained on behalf of her mother, Mrs Y, that the Council wrongly initiated a safeguarding enquiry because of non-payment of care home charges. Miss X says she tried to resolve the issue, but the Council did not properly communicate with her. Miss X says the Council’s actions caused avoidable stress and anxiety. We find no fault by the Council regarding this matter and have concluded our investigation.

The complaint

1. Miss X complained on behalf of her mother, Mrs Y, that the Council wrongly initiated a safeguarding enquiry because of non-payment of care home charges. Miss X says she tried to resolve the issue regarding the care charges, but the Council did not properly communicate with her. Miss X says the Council’s actions have caused avoidable stress and anxiety.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I discussed the complaint with Miss X and considered the information she provided.
6. I made enquiries to the Council and considered the information it provided.
7. Miss X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Charging for residential care

8. A council can choose whether to charge a person where it is arranging to meet their needs. In the case of a short-term resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.
9. The Care and Support Statutory Guidance
10. The Care and Support Statutory Guidance, (the Guidance), says local authorities must assess the income and capital of the person being charged. (Care and Support statutory guidance Annex B,)
11. The Guidance also says, “each local authority must make enquiries, or cause others to do so, if it believes an adult is experiencing, or is at risk of, abuse or neglect”. (Care and Support statutory guidance 14.10)

Lasting Power of Attorney

12. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person, (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
13. 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.

14. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

Court of Protection

15. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which 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;
• appoints deputies to make decisions for people lacking capacity to make those decisions.

Safeguarding

16. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Background

17. Miss X’s mother, Mrs Y, has dementia and a mental health condition. Miss X says Mrs Y was sectioned under the Mental Health Act in June 2018 due to her poor mental health. When she was discharged in December 2018, Mrs Y moved into residential care at Care Home A.

What happened

18. This chronology includes key events in this case and does not cover everything that happened. I have not made reference to all events that took place, but I have not ignored their significance.
19. Miss X helped Mrs Y complete a financial assessment form in January 2019 to determine if she was required to contribute towards her care costs while in residential care.
20. In March 2019, Mrs Y moved from the care home into an NHS mental health facility.
21. In July 2019, the Council sent an invoice to Miss X for Mrs Y’s care charges at Care Home A. Miss X says she disputed the amount charged because she did not consider Mrs Y should be required to pay the charges. Miss X told the Council she did not have an LPA for Mrs Y.
22. In September 2019, the Council wrote to Miss X. It said Miss X could apply for deputyship if she wanted to manage Mrs Y’s finances and suggested Miss X seek legal advice to help with this. It said alternatively, if Miss X did not wish to manage Mrs Y’s finances, a solicitor could apply for deputyship and manage them on her behalf. The Council also said Miss X could allow the Council to apply to the Court of Protection to become a corporate appointee so that it could manage Mrs Y’s finances.
23. Miss X says she contacted the Council to ask about the letter but received no response.
24. Mrs Y moved from the NHS mental health facility into residential care, Care Home B, in October 2019.
25. Miss X emailed the Council on 29 November 2019 to ask about the fees for Mrs Y’s care at Care Home B. The Council replied on the same day and told Miss X payments should be paid directly to Care Home B. It said the fees for Care Home A remained unpaid. The Council asked Miss X to provide Mrs Y’s bank statements.
26. Miss X replied on the same day and told the Council she did not know how to get Mrs Y’s bank statements because she did not have power of attorney. She said she did not know how the arrears for Care Home A could be paid because Mrs Y’s income was paying for her care at Care Home B. Miss X asked the Council for advice on how to proceed and said she did not want arrears to build up for the care charges at Care Home B.
27. Miss X emailed the Council on 8 December 2019 and said the Council had not responded to her. Miss X asked about the fees at Care Home B and said she did not think she could pay the arrears in full. She asked the Council to sort the matter out because of the increasing arrears.
28. Miss X told the Council in January 2020 the financial assessment form contained a mistake. She said Mrs Y’s private pension was paid monthly, whereas the assessment showed it was paid weekly. Miss X says she sent a letter from the pension provider to confirm this.
29. In January 2020, the Clinical Commissioning Group decided Mrs Y was eligible for continuing healthcare funding at Care Home B from 30 December 2019.
30. On 13 January 2020, the Council sent a final statement for care and support charges at Care Homes A and B for the period Mrs Y was liable to pay a contribution. The Council asked Miss X to provide the contact details of the solicitor dealing with Mrs Y’s finances if applicable.
31. In February 2020, Miss X told the Council she was looking for a solicitor to begin the LPA application.
32. In March 2020, the Council asked for evidence of Mrs Y’s private pension so that it could recalculate her financial assessment.
33. Miss X emailed the Council on 5 March 2020. She disputed the amount of the care home charges and said she had provided evidence of the private pension in January 2020. Miss X said the Council did not need Mrs Y’s bank statements and said the Council had all the information it needed.

What happened next

34. In September 2020, the Council initiated a safeguarding enquiry regarding Mrs Y.
35. The Council contacted Miss X in April 2021 to arrange a meeting to discuss its concerns with her.
36. That same month, Miss X provided a letter from Mrs Y’s pension provider to the Council.
37. The Council reassessed Mrs Y’s financial assessment and provided Miss X with an amended statement showing a reduced amount of outstanding care fees.
38. In May 2021, Miss X told the Council she was applying for deputyship to manage Mrs Y’s finances.

Miss X’s complaint

39. Miss X complained on 19 May 2021 that the Council initiated a safeguarding enquiry without her consent or knowledge. She said the Council had not told her why the safeguarding referral was made and said the Council had pressurised her into applying for deputyship for Mrs Y. Miss X said she felt victimised and that no-one had listened to her views or concerns about the care charges.
40. The Council replied on 5 July 2021. It said it received a safeguarding referral following concerns raised about a lack of response from Mrs Y’s family to discuss a resolution to the debt incurred by her unpaid care charges. The Council said it had explained someone needed to oversee Mrs Y’s finances and had explained that either Miss X or the Council could do this. It said it had a duty to make enquiries following the safeguarding referral and said it could request bank statements to assist with this. It said the aim of the enquiry was to ensure Mrs Y’s finances were being managed within a clear legal framework.
41. Miss X escalated her complaint to stage two on 25 July 2021. She said the Council’s allegations that she had not engaged in discussions to resolve the debt were incorrect and misleading. Miss X said the social worker involved in the case had made no concerted effort to contact her. She said she felt bullied and harassed by the Council and that she had tried her best to resolve the debt. She said she wanted the Council to end its safeguarding enquiry and said she would pay the outstanding fees once she was granted deputyship.
42. The Council responded on 16 August 2021. It maintained the concerns were regarding the length of time taken for an application to be made to legally manage Mrs Y’s finances, and to manage the debt that had accrued. The Council said it had made several attempts to resolve the debt issue with Miss X and her family, including discussions about applying to the Court of Protection to manage Mrs Y’s finances. The Council said the financial assessment form did not declare any capital, and said it was a standard request to ask for bank statements as part of the assessment. The Council acknowledged Miss X told a social worker in January 2020 about the payment frequency of Mrs Y’s private pension. However, it said it did not receive evidence of the pension payments until April 2021.
43. Miss X remained dissatisfied with the Council’s response and brought her complaint to us.

Analysis

44. I have exercised discretion in investigating Miss X’s complaint back to 2019, when Miss X and Mrs Y completed the financial assessment form. This is because Miss X made her complaint to the Council within 12 months of the Council’s decision to start the safeguarding enquiry.
45. I have reviewed the information provided by both parties and considered whether there was fault in the way the Council decided to initiate a safeguarding enquiry. When considering safeguarding concerns, I would expect the Council to follow the relevant guidance and policies, and record how it made its decision.
46. The Council says it was concerned about the management of Mrs Y’s finances because of the length of time taken to receive evidence of her income, and because of the time taken for the family to initiate the management of Mrs Y’s finances.
47. I acknowledge Miss X says she provided evidence of the pension in January 2020. However, the Council’s records indicate it did not receive this and I have seen no evidence to show this was provided prior to the safeguarding enquiry. I also acknowledge Miss X says she cannot obtain Mrs Y’s bank statements until she is granted deputyship. However, the evidence shows the Council contacted Miss X in September 2019 to provide advice on how to apply for deputyship or allow a solicitor or the Council to take on this responsibility.
48. The Council has a duty under the Care Act 2014 to make enquiries if it believes an adult is experiencing or is at risk of abuse. This includes financial abuse resulting from mismanagement of property or funds. In addition, the Council’s safeguarding policy says, “an adult safeguarding concern is any worry about an adult who has or appears to have care and support needs, that they may be subject to, or at risk of, abuse and neglect and may be unable to protect themselves against this.”
49. The Council requested evidence of Mrs Y’s finances from her family as she was not able to provide this information herself. As the Council did not receive the information requested, it was unable to verify Mrs Y’s income or capital during this period. The Council’s records show that as a result, it became concerned about the management of Mrs Y’s finances and the accruing debt caused by the unpaid care charges. I acknowledge Miss X strongly disagrees with the Council’s reasons for initiating the safeguarding referral, but this is not evidence of fault.
50. The Council considered Mrs Y’s case in line with its safeguarding policy and the statutory guidance and considered it met the criteria for initiating a safeguarding enquiry. As the Council followed the relevant guidance and policies and recorded how it made its decision, I have found no fault by the Council regarding this matter.
51. I acknowledge Miss X says she tried to resolve the debt prior to the safeguarding enquiry and says the Council did not properly communicate with her. I also acknowledge Miss X says there were periods when the Council did not contact her. However, Miss X acknowledges there were also periods when she did not contact or respond to the Council either. As a result, I cannot find the Council to be solely responsible for breaks in communication.
52. I am satisfied Miss X told the Council she did not have power of attorney for Mrs Y, and that she told the Council she had provided evidence of Mrs Y’s income. However, I have seen no correspondence to the Council prior to the safeguarding enquiry to evidence the family had taken steps to resolve the issue of obtaining Mrs Y’s bank statements.
53. I acknowledge Miss X told the Council it did not need Mrs Y’s bank statements because she said she had provided details of her income. However, local authorities must assess the income and capital of the person being charged; this includes funds held in bank accounts.
54. I am satisfied the Council requested clarification of Mrs Y’s income and capital, explained its reasons for making these requests, and explained why it asked Mrs Y’s family to apply for deputyship. As a result, I have found the Council is not at fault for failing to communicate with Miss X.

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Final decision

55. I have found no fault by the Council and have concluded my investigation.

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Investigator's decision on behalf of the Ombudsman