Summary: Mrs X complained the Council did not follow the correct process to become Mr Y’s deputy, causing distress. We discontinued our investigation because the complaint is out of time, there is not enough evidence of fault, any injustice is not significant enough to justify our involvement and, there are other bodies better placed to consider the complaint.

The complaint

1. Mrs X complains the Council did not follow the correct process to become a Deputy for her late father, Mr Y, and then mismanaged his finances, causing distress.

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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. 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)
4. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint,

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

5. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
6. I gave Mrs X and the Council an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Appointee

7. An appointee is someone the Department of Work and Pensions (“DWP”) authorises to manage a person’s benefits for them.
8. If someone is unhappy with an appointee they should contact the DWP. The DWP decides whether to remove or change the appointee.

Deputy

9. A deputy (also known as a court-appointed deputy) is a person appointed by the Court of Protection under the Mental Capacity Act 2005 to take decisions on behalf of someone who lacks capacity to take those decisions themselves.
10. Relatives or a council may apply to court of protection for deputyship. In either case there is a set fee for the application and any hearing.

Court of Protection

11. The Court of Protection is the only body that can appoint, remove or replace a deputy. If a person is unhappy with the court’s decision to appoint a deputy they need to go back to the court.

Office of Public Guardian

12. The Office of Public Guardian (“OPG”) supervises deputies after the court’s appointment.
13. If someone has concerns about the actions of a deputy appointed by the Court of Protection, they should contact the OPG. The OPG can investigate the actions of the deputy and can also refer concerns to other relevant agencies.

Executor of an estate

14. The person dealing with the estate of someone who has died is called an executor. An executor is named in the will as responsible for dealing with the estate. An executor may have to apply for a special legal authority before they can deal with the estate. This is called probate.

Next of kin

15. Next of kin refers to a person's closest living relative(s). A public body may record a person’s next of kin so they know who to contact in an emergency. Whether some is the next of kin has no bearing on whether they are named as executor of the estate.

Care Act statutory guidance

16. When a person lacks capacity to make decisions about their finances, it useful for a council to consult with and engage with family members. However, family members may not have the legal right to access the person’s bank accounts. Where possible, councils 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 the service user may need a deputy. Family members can apply for this to the Court of Protection or the council can apply.

What happened

17. The DWP authorised the Council as Mr Y’s appointee in 2019.
18. The COP appointed the Council as Mr Y’s deputy in late 2019.
19. In December 2019 Mrs X emailed the Council. She explained she had little communication regarding her father’s care as she was abroad and left this to other family members. However, she expected to manage his affairs and wanted to ensure she was the executor of his estate.
20. The Council told Mrs X it was appointed deputy and it could not disclose much information for data protection reasons.
21. Mrs X queried the deputyship and the Council said it had involved another family member, Mr Z, in discussions around the deputyship.
22. Mr Z passed away in February 2020 and Mr Y passed away a few days later. At that time there were debts on Mr Y’s account. This included a £745.00 court fee incurred when the Council applied to become deputy. £3,403.01 were outstanding care fees.
23. In March 2020 Mrs X complained to the Council that:
• it had allowed debts to build up on Mr Y’s account;
• it had not told her of its application for deputyship; and
• she was unhappy with the Council’s level of communications.
24. The Council met with Mrs X to discuss her complaint. Its records of this meeting say it did not discuss details of the deputyship with Mrs X at the time due to data protection concerns.
25. In June the Council responded to Mrs X in writing. In summary it said:
• Going forward she would be the Council’s main point of contact from the family for the Estate administration;
• It became appointee in 2019. Mr Y had debts on his account but as appointee it could not access his bank accounts to address these.
• It became deputy in November 2019 and took steps to access Mr Y’s account. However, it did not gain access before he died.
• It held money on account for Mr Y and required the administrator of his estate to contact it before it could release this.
26. In 17 June and 1 July 2022 Mrs X complained to the Council that it had mismanaged Mr Y’s finances by allowing a debt to build up. And it had not contacted her before seeking deputyship.
27. In August the Council responded. In summary it said:
• It did not gain deputyship in time to access Mr Y‘s bank account to pay the debts before he died. However, Mrs X could access his account now to pay the debts. Alternatively, she could sign an indemnity form allowing the Council to access the funds to clear the debts. It told her this in June 2020.
• As to her concerns about its management of Mr Y’s finances, it needed signed documents from her advising she was the executor of the estate and responsible for the administration of costs and beneficiaries, to proceed.
• She could contact the Ombudsman.
28. Mrs X sent a further response to the Council. In summary:
• She did not seek that the Council become deputy and so disputed the fee. If she had been aware she would have agreed to manage Mr Y’s finances herself.
• In relation to her executorship, the Council had emails confirming she was the next of kin. Despite this the Council gave details of Mr Y’s insurance policy to another family member who then misused these funds.
• The Council had time to pay the debts.
29. On review of further correspondence provided by Mrs X and the Council I note:
• The Council recorded Mr Z as Mr Y’s next of kin prior to February 2020.
• On 11 February 2020 Mrs X told the Council she should be named as Mr Y’s next of kin.
• On 17 February the Council named another relative, Mr W, as Mr Y’s next of kin, on receipt of Mr Y’s death certificate from him.
• On 19 February the Council gave Mr W details of Mr Y’s insurance policy.
• On 20 February the Council told Mrs X that Mr W agreed for her to be named as next of kin and it had updated its records.
• On 24 February the Council emailed Mrs X detailing Mr Y’s outstanding debts. This referred to the deputyship set up fee of £745. The Council also attached an indemnity form for Mrs X to sign so that it could use funds held on Mr Y’s account to clear the debts.
30. Mrs X told the Ombudsman:
• In 2020 the Council told her it could apply for deputyship without informing her, but this was incorrect. She only found recently the Council should have got her consent before applying for deputyship.
• She only found out recently the deputyship was in place before her father passed and so the Council had time to clear the debts.
• Mr Z was in contact with the Council but he did not tell her about the deputyship process.

Findings

31. I will not investigate Mrs X’s complaint that the Council failed to notify her before applying for deputyship, because the complaint is out of time. The Council’s record of the March 2020 meeting shows Mrs X raised this then. Therefore, she could have contacted the Ombudsman sooner. Further, I will not investigate this complaint because it is unlikely I will find fault, given the Council discussed the deputyship with another family member, Mr Z. And I will not investigate because any fault did not cause significant injustice. This is because, whether the Council or Mrs X became deputy a fee would be payable and, in either case, a deputy must act in Mr Y’s best interests.
32. I will not investigate Mrs X’s complaint the Council mismanaged Mr Y’s finances, because the complaint is out of time. Correspondence shows Mrs X was aware in 2020 the Council was deputy and of the actions it took regarding Mr Y’s finances. Therefore, she could have contacted the Ombudsman sooner. Further, I will not investigate this complaint because any complaint about the actions or decisions of a deputy should be raised with the OPG. And I will not investigate because any fault did not cause significant injustice. This is because the debts would be payable from Mr Y or his estate in either event.
33. I will not investigate any complaint the Council wrongly passed on Mr Y’s data. This is because the Information Commissioner’s Office is the appropriate body to deal with data protection complaints.

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Final decision

34. I have discontinued my investigation. This is because the complaint is out of time, there is not enough evidence of fault, any injustice is not significant enough to justify our involvement and, there are other bodies better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman