Summary: Mrs X complains the Council failed to deal properly with her husband’s care or respect her position as his power of attorney for property and affairs and health and welfare, putting her to significant expenses and causing significant distress which has not been fully addressed by the Council’s flawed safeguarding investigation and the payments it has agreed to make to her. The Council accepts it failed to deal properly with Mr & Mrs X, causing avoidable distress. It has apologised and agreed to make payments to refund Mrs X for additional costs she incurred and to reflect the long delay in sending her its summary report on the investigation into her concerns. The Council needs to make a further symbolic payment to reflect the avoidable distress caused by its failure to deal properly with her and her husband.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council failed to deal properly with her husband’s care or respect her position as his power of attorney for property and affairs and or health and welfare, putting her to significant expenses and causing significant distress which has not been fully addressed by the Council’s flawed safeguarding investigation and the payments it has agreed to make to her

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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. 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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mrs X’s advocate;
• discussed the complaint with the advocate;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mrs X, via her advocate, and the Council, for me to consider before making my final decision.

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What I found

What happened

5. Mr X has dementia. Mrs X has powers of attorney for his health and welfare, and property and affairs. Mr X has children from a previous relationship, one of whom, Mr Y, works for the Council and from whom he was estranged.

2020

6. In December Mrs X told the Council she could no longer meet her husband’s needs at home because of his increasingly aggressive and controlling behaviour. When asked, she said their marriage was over.
7. The Council registered this as a safeguarding concern but closed it down when Mrs X arranged a respite placement in a care home for her husband. This was because she had taken action to protect herself, while ensuring her husband received the support he needed. Mr X initially funded the placement himself.
8. Mr Y spoke to social care staff about his father’s circumstances. He asked for information which they initially refused to give him

2021

9. In January social worker 1 shared information with Mr Y that Mrs X had provided. The Council accepts it was wrong to do this.
10. Social worker 1 assessed Mr X’s capacity, under the Mental Capacity Act 2005, to make decisions about his care needs and where they should be met. Social worker 1 decided Mr X had the capacity to make such decisions for himself. The Council accepts the decision was likely flawed, as it is unlikely Mr X had the mental capacity to make decisions about his care and accommodation at that time.
11. Following the assessment, social worker 1 e-mailed Mrs X about their decision, commenting extensively on the state of their marriage (“relationship breakdown”). They said Mr X did not need 24-hour care, so needed to return to the community, albeit not with Mrs X, although that was what Mr X wanted. They proposed a family meeting, including Mr Y, to work out what was best for them both. They said Mr X was only in care because of the breakdown in their relationship. Social worker 1 also told Mr Y about the assessment, and sent him a copy of the e-mail sent to Mrs X. The Council’s records say Mrs X consented to this, but she denies this. Social worker 1 said Mrs X could not remain as her husband’s power of attorney.
12. Mr X’s case was transferred to social worker 2 in January. The Council says the plan was to review the respite care, Mr X’s mental capacity and identify longer-term support options and whether the best interest process needed to be used for this. It accepts this did not happen and that there was a delay is assessing Mr X’s mental capacity. Social worker 2 accepted social worker 1’s decision that Mr X had the capacity to make decisions about his care and accommodation.
13. Social worker 2 told Mrs X other arrangements would need to be made for Mr X, as he did not need 24-hour care and did not want to remain there. They could not assure Mrs X he would not return home and suggested they sell the house. They also suggested a family meeting but, when Mrs X said this left her feeling emotional and stressed, they suggested separate meetings.
14. Later in January, Mrs X followed to social worker 2’s request that she write to Mr X saying she wished to separate. Social worker 2 said they would arrange a meeting so his family could support Mr X. They noted Mrs X understood her role as her husband’s power of attorney may not be appropriate in the long-term. Mrs X said she still cared about her husband and wanted the best for him. She raised concerns about him living independently in the community because of the support she had provided for him when at home, including prompting with all activities of daily living. She said his savings had depleted. The Council shared information with Mr Y about his father’s finances. The Council noted Mrs X was seeking support from a domestic abuse charity.
15. Mr X agreed the Council could share information with Mr Y about his care needs assessment. The Council noted he was at times confused about where he was but understood his accommodation was short term.
16. After receiving Mrs X’s letter, Mr X told the Council he wanted to stay where he was for the time being, as he felt safe and well cared for.
17. Mr X developed a relationship with another resident at the care home. In February the care home reported a potential safeguarding concern after they were found partially undressed in a bedroom. The care home’s report questioned whether they had the capacity to consent to an intimate relationship. The care home implemented 15-minute observations (later extended to 30 minutes) to prevent sexual contact. The observations did not prevent them from continuing their relationship. Mr X began referring to the other resident as his wife. It appears the Council closed the safeguarding concern on the basis the care home was taking appropriate action to safeguard its two residents. No one told Mrs X about the incident at the time. However, on 25 February the care home told her Mr X had formed a relationship with another resident and that they were both happy together. This caused her additional distress
18. Towards the end of February, the Council updated the assessment of Mr X’s needs (originally completed in October 2020). The updated assessment said:
• Mrs X decided Mr X could not return home after he had been in the care home for four weeks;
• On 14 January Mr X was found to have the capacity to make decisions about his care and support needs and accommodation;
• Mr X wanted to remain in the care home, where he had befriended another resident;
• He could not stay there unless they sold the home Mrs X was living in;
• Mr X would become very anxious without 24-hour support, placing him at risk of seeking company in the community, getting lost and being vulnerable to exploitation;
• A mental capacity assessment was required (and a best interests meeting).
19. In March, Mrs X told the Council she intended to sell their home but did not want to be rushed.
20. The Council noted:
• Mr X could only remain at the care home if a third-party agreed to top-up the difference between what the Council would contribute towards its costs and the actual cost;
• The Council had to offer two affordable residential placements;
• Mr X could not top-up his own placement, even if Mrs X decided to sell the house and released his equity in the property;
• Mrs X would rescind her powers of attorney for Mr X and his children were likely to take on this role.
21. Mrs X told the Council she was upset about the way it had dealt with the situation. She said she had felt under pressure to make decisions about her relationship with her husband. She said she had been exhausted from years of caring for him and dealing with his challenging behaviour. She said she had also felt under pressure to take part in a meeting with his children. Social worker 2 apologised and said they had since been advised that people’s views could be obtained separately. Mrs X agreed to provider her views on her husband’s care needs and where they should be met for a planned best interests decision.
22. Towards the end of March, the Council agreed to fund Mr X’s placement in the care home from 1 March. Initially this was for two months. It appears the Council expected the money to be repaid when Mr and Mrs X sold their home. However, it noted there could not be a deferred payment agreement, as it could not place a charge on the property while Mrs X was still living in it.
23. In April social worker 2 made notes of a best interests decision for Mr X to remain in the care home. The notes say everyone agreed to this, including Mrs X. They also say Mr X lacked mental capacity. However, there had been no mental capacity assessment.
24. The Council noted Mr X could not afford to remain in the care home as his capital had fallen below the upper capital threshold (£23,250) and his income was not enough to cover the weekly cost of the care home (£1,100) and his family could not pay a top-up.
25. The Council agreed to continue funding Mr X’s placement at the care home until the property was sold. The Council noted Mrs X still cared for her husband, wanted to have contact with him and to remain his power of attorney.
26. In May the Council was told Mrs X intended to remain in the family home and wanted it to find an alternative placement for Mr X which did not require a top-up. Mrs X made this decision after taking financial advice.
27. In June social worker 2 noted their focus had been to ensure Mr X could stay in the care home, in his best interests. They noted Mrs X had the right to remain in the family home and that the property would be disregarded in Mr X’s financial assessment. They noted there was no evidence Mrs X was intentionally causing her husband distress by deciding not to sell the property. They also noted the Office of the Public Guardian would only seek to revoke a power of attorney if there was evidence that the attorney was not acting in someone’s best interests.
28. Social worker 2 encouraged Mr Y to make his own assessment of Mr X’s mental capacity to revoke his wife’s powers of attorney. They also offered to speak to the Office of the Public Guardian if they had any questions.
29. After assessing Mr X in June, social worker 2 decided he did not have the mental capacity to:
• Understand his financial situation relating to his care and accommodation needs; or
• Make decisions about his care and accommodation needs.
30. Social worker 2 also noted it was in Mr X’s best interests to remain in the care home and that everyone agreed with this. However, the formal consultations over the best interests decision did not happen until later in June.
31. The Council noted the family’s plan for Mr X to revoke Mrs X’s powers of attorney and appoint alternative attorneys. It also noted the Office of the Public Guardian would pursue any safeguarding concerns about Mrs X’s management of her husband’s finances. After the application was made, Mrs X challenged it on the basis her husband did not have the mental capacity to make such decisions. The Office of the Public Guardian turned the application down. Mr Y then applied to the Court of Protection to have Mrs X removed as her husband’s power of attorney. This resulted in Mrs X incurring legal costs in successfully defending the application.
32. In July the Council decided it was in Mr X’s best interests remain in the same care home where he would be able to continue his relationship with the other resident. Mrs X’s preferred option had been for Mr X to move to another care home. However, she did not rule out other options - remaining where he was or moving to another care home where he would be able to continue the relationship with the other resident - provided safeguards were in place. She also told the Council she wanted it to make the decision in her husband’s best interests.
33. In August the Council decided to fund the additional costs of Mr X’s placement, despite Mrs X no longer planning to sell the family home. It says it did this because:
• Mr X had been placed there in an emergency and had settled;
• the head of service, who had been approached by Mr Y, exercised the Council’s discretion not to charge a top-up because of the complexity of the situation, concerns Mrs X could not pay a third-party top-up and a mistaken understanding that there were safeguarding concerns over her role as her husband’s power of attorney.
34. The Council accepts the discussions between Mr Y and the head of service did not respect Mrs X’s role as her husband’s power of attorney.
35. In November 2021 the Council received another safeguarding referral about the ongoing relationship between Mr X and the other resident. Social worker 2 said Mrs X had wanted her husband to remain permanently in the care home despite not agreeing to sell the house to pay a top-up. But Mrs X had asked the Council to find an affordable placement. Despite wanting her husband to move to another care home, she had agreed the Council could make a decision in her husband’s best interests. Social worker 2 sent Mrs X a leaflet for an organisation which supports the carers of people with dementia.
36. The Council assigned the safeguarding concerns to officer B to make enquiries into them. Officer B made separate enquiries into the handling of the relationship between Mr X and another resident and Mr Y getting his father to sign documents giving him powers of attorney in June 2021.

2022

37. The Office of the Public Guardian wrote to the Council in January. It said Mr X had lacked the capacity to revoke his powers of attorneys and appoint new attorneys in June 2021, having lost the capacity to do so between August 2020 and April 2021.
38. On 14 February officer B sent Mrs X a document which identified the actions taken by officers, including their contact with Mr Y and his siblings. The document also set out some initial views but said further work needed to be done to investigate Mrs X’s concerns.
39. Officer B completed the safeguarding enquiries in February and April.
40. In September Mrs X’s advocate raised concern about the length of time the investigation was taking to produce a report. Officer B apologised and assured them there would be no “whitewash”.
41. In October Officer B told Mrs X, given the seriousness of the issues she had raised, senior managers were involved in the process.
42. In November Mr X moved to another care home. The Council funds the placement, which costs more than it would usually pay, without asking for a third‑party top-up.
43. In December the Council told Mrs X’s advocate it had shared safeguarding reports with Mrs X in February and April 2022. The advocate pointed out she had received neither report and asked the Council to send them. The Council agreed to do this and said it would send them when it sent the summary of the investigation report into the practice of the staff involved in the safeguarding enquiries. It said Officer B would provide a timeframe for this in the new year.

2023

44. In March the Council told Mrs X it would share a summary report into the complaint with them when its legal and data protection teams had reviewed it.
45. In June the Council wrote to Mrs X setting out the outcome of its investigation into alleged breaches of data protection legislation. It said some of the alleged breaches were not found to be breaches, as Mr X had been deemed to have capacity and had consented to share information with his family. However, after Mr X had been assessed as lacking capacity, officers had failed to consult Mrs X before sharing information with his family. These breaches did not meet the threshold for reporting to the Information Commissioner’s Office. However, the Council said it would make sure staff knew how to identify and report data breaches and were aware of the lasting powers of attorney process.
46. On 19 July, the Council sent Mrs X a summary report into the practice of officers involved with Mr X’s care. The report found:
• Social worker 1 did not consider Mrs X’s distress, upset and the impact of her caring role.
• There were data breaches when information was shared with Mr Y without Mrs X’s consent.
• Mr X had confirmed that he did not want information shared with his family in 2014, so information should only have been shared with Mrs X.
• Evidence provided to the Court of Protection showed Mr X was unlikely to have had the mental capacity to make decisions about his care and accommodation needs.
• There had been no safeguarding concerns relating to Mrs X’s management of her husband’s powers of attorney.
• Social worker 2 followed the views recorded by social worker 1, failed to review Mr X’s mental capacity (when they took over his case) and continued to communicate with Mr Y and share information with him without authority.
• Information about the safeguarding concerns at the care home had not been shared with Mrs X.
• Mr X’s relationship with another resident had been encouraged to move beyond friendship, although there was no evidence it developed beyond them thinking they were husband and wife.
• There was no need to arrange a family meeting.
• Social worker 2 wrongly recommended Mrs X sell the family home to pay for Mr X’s care.
47. In a covering letter to the summary report, the Council apologised for the distress and upset caused to Mrs X. It noted that it had offered payments for a personal assistant for Mrs X (£1,417), trauma therapy (£2,832) and legal costs (£4,320). As a further “goodwill gesture”, it offered £500 for the time taken to share the summary report with her and asked her to confirm whether she accepted this. It said it had taken these actions because of the problems she had experienced:
• Discussed the issues with the officers involved;
• Shared learning with officers about the Mental Capacity Act, assessment, implementation and application, and data sharing and protection;
• Scheduled further development and training about these issues with managers and supervisors.

The Council said it would arrange a restorative justice meeting with the two social workers.

48. Mrs X says the problems she has experienced have prevented her from returning to work and have had significant impacts on her physical and mental health.

Is there evidence of fault by the Council which caused injustice?

49. The Council accepts it was at fault over the way it dealt with Mrs X and her husband.
50. The Council shared information with Mr X’s family, including one of its own employees, about Mrs X and her relationship with her husband which it had no right to share. It failed to respect the required boundaries between employees who also engage with the Council as members of the public. It encouraged Mrs X to write to her husband ending their relationship and to sell the marital home. These were not decisions for the Council to involve itself in. It should have advised Mrs X to take independent advice about financial matters.
51. The Council failed to take account of Mrs X’s vulnerability as the victim of domestic abuse while also trying to meet her husband’s care needs. It should have provided her with information at an early stage about other agencies which could have provided support with the problems she was experiencing.
52. The Council treated Mrs X as though she had engineered the situation for her own advantage. It failed to assess Mr X’s mental capacity properly, resulting in it sharing further information with his family and inappropriately involving them in decisions about his care. It failed to assess Mr X’s mental capacity properly. It then started making assumptions about what was in Mr X’s best interests, without having assessed him as lacking the capacity to make such decisions for himself.
53. The Council encouraged Mr X’s relationship with the other resident. It also encouraged Mr Y to take the view that Mrs X was no longer a suitable person to have powers of attorney for her husband’s affairs. Without any evidence, it accepted the notion that Mrs X may have been mismanaging her husband’s finances. This helped precipitate a sequence of events which resulted in significant costs and distress to her.
54. The Council told Mrs X it had shared the safeguarding reports with her, although there is no evidence it did this. It later told her it would share the reports with her. However, the reports contained the personal data of third parties, so there was no basis to share them with Mrs X. Raising her expectations unnecessarily caused further distress and increased her sense of mistrust of the Council.
55. The Council’s response to the data breaches was flawed because it was based on the assumption that the assessment of Mr X’s mental capacity in January 2021 was accurate. But the Council accepted Mr X was unlikely to have had the mental capacity to make decisions about his care and accommodation. While there was no assessment of his capacity to decide who information should be shared with, it seems unlikely he would have had the capacity to do so. Either way, the Council needs to review its response to the data breaches in the light of its subsequent decision on Mr X’s mental capacity in January 2021.
56. The Council has remedied some of the impacts these faults had on Mrs X by apologising and paying for a personal assistant, trauma therapy and the legal costs associated with defending the application to the Court of Protection. It has also offered to pay Mrs X £500 for the delay in completing the summary report. In addition to this, the Council needs to make a symbolic payment to Mrs X to reflect the avoidable distress caused by its failure to deal properly with her and her husband.
57. The Council’s decision to fund Mr X’s placement in a more expensive care setting without seeking to move him to an affordable placement, remedies any injustice to Mr X.

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Agreed action

58. I recommended the Council:
• Within four weeks, pays Mrs X a further £1,000 and reviews its response to the data breaches;
• Within eight weeks, identifies the action it is going to take to ensure staff maintain appropriate boundaries when dealing with colleagues who are acting as members of the public.
59. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman