Summary: Mrs Z complained on behalf of her husband Mr Z, that the Council and Care Home wrongly accused him of mismanaging his father’s finances and wrongly reported him to the police. She says this caused distress and impacted their health. There is no fault as the Council correctly began a safeguarding investigation when concerns about finances were raised and correctly involved the police.

The complaint

1. The Council, and the care home providing services on behalf of the Council, wrongly accused Mr Z of mismanaging his father’s finances and wrongly reported him to the police.
2. Mrs Z, complaining on behalf of her husband Mr Z, says the situation caused distress and had a negative impact on their health.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant’s representative;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant’s representative;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Safeguarding

6. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. 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)

Mental Capacity Act

7. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Best interest decision making

8. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.

Court of Protection

9. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
10. 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:

• decides whether a person has capacity to make a particular decision for themselves;
• 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;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

Key facts

11. Mr X, Mr Z’s father, was transferred to a care home in February 2021 after experiencing a brain injury as the result of a stroke. A best interest meeting decided a residential placement was appropriate as well as being the least restrictive option for Mr X.
12. Mr X was aged 63 when he moved to the care home. He was employed but due to the COVID-19 pandemic was receiving furlough payments. He was unable to return to work and so when furlough payments ended, Mr X had no income. He was not in receipt of any benefits due to his age and because his costs for the care home were fully met by the Council. Mr X had a limited amount of savings to use to meet other needs and leisure activities.
13. Mr X had support from both his son, Mr Z, and his daughter Ms Y. While both siblings had a good relationship with Mr X, over time there was a total breakdown in communication between them.
14. When Mr X entered the care home, there was no lasting power of attorney (LPA) in place. Mr Z was assisting his father with his finances and had applied to the Court of Protection for a Deputyship. Mr Z assisted his father to complete the financial assessment for the care home placement. The Council says there were no concerns raised when it viewed the evidence provided as part of the financial assessment.
15. In July 2021, a member of staff from the care home contacted the Council raising concerns about possible mismanagement of Mr X’s finances by Mr Z. The care home was concerned that Mr X did not have mental capacity and there was no LPA. The Council said that a safeguarding referral should be made if the home felt financial abuse was taking place. It is my understanding that no evidence of abuse was found and the safeguarding referral was closed.
16. In June 2022, Ms Y told the Council that she was also applying to the Court of Protection for a Deputyship. Notes of a telephone conversation show that she also raised concerns about how her brother was managing Mr X’s finances. The Council said that as she was reporting financial abuse, it had a duty of care and so would make a safeguarding referral.
17. In September 2022, Mr Z made a complaint regarding his dissatisfaction with the service provided to his father by the care home. As well as concerns about the standard of care, the complaint raised concerns about the care home holding Mr X’s bank card and cheque book and not allowing him access to it. Mr Z said the care home indicated it would now be supporting Mr X to manage his finances.
18. The care home told the Council it had completed a mental capacity assessment which determined Mr X had capacity to ask it to manage his finances. The Council told the care home that a clinical psychologist had completed a mental capacity assessment which had been sent to the Court of Protection which deemed Mr X lacked capacity to manage his finances. It said that because there was conflict it should request a best interests decision meeting.
19. However, the matter progressed into a formal safeguarding investigation after Ms Y visited the bank with her father and found the debit card had been cancelled. The bank said that Mr Y had used online banking to cancel the card and to re-direct post to his address. Ms Y then instructed the bank to cancel that card and to re-direct post back to the care home. The police were notified and then led the safeguarding investigation. This resulted in the Council closing the safeguarding referral as it became a police matter.
20. In early October 2022, the Council visited Mr X and determined he did not have capacity to make decisions about the management of his finances. Mr Z, on behalf of Mr X, had not paid the assessed financial contribution of approximately £10 per week since January 2022. Mr Z says that he had tried to make payments. The Council looked at bank statements and was concerned about seven transactions where money was withdrawn from a cash machine which did not match with Mr X’s financial records in the home. The care home reported that Mr X was not provided with a regular allowance by Mr Z and that money was owed to the care home.
21. The Council made a referral to its Client Financial Affairs Team (CFA) for it to manage Mr X’s finances. However, it decided it had no role to take. There were applications pending with the Court of Protection which would determine the appropriate person to manage Mr X’s finances. Ultimately, the Court of Protection appointed a third party panel deputy to manage Mr X’s finances.
22. An email from the police to the Council dated 9 November notes the officer had concerns that not much money had been taken from Mr X’s bank account. The officer said she was waiting for Ms Y to indicate which transactions were disputed. By 22 December, the Council decided not to take further action.

Analysis

23. Mr X lost mental capacity regarding financial decisions when he had a stroke. There was no LPA in place and so his son, Mr Z, applied to the Court of Protection for a deputyship. Mr Z was involved in the financial assessment for Mr X in respect of the Care Home costs. The Council was happy to accept Mr Z in this role and there is nothing to suggest it had any concerns about his actions in respect of Mr X’s finances.
24. The Council has a statutory duty to make enquiries if it believes an adult is experiencing, or is at risk of, abuse or neglect. In such circumstances it has to make enquiries to establish whether action needs to be taken to prevent or stop abuse or neglect.
25. In this case there were two instances where reports were made of possible financial abuse. Both reports came from Mr Z’s sister, Ms Y, and it is clear the relationship between them had broken down. However, the Council has a duty to take action and there was evidence from the Care Home to support the belief that abuse could be taking place. I therefore find no fault in respect of the Council’s decision to instigate safeguarding actions in respect of each report.
26. The information provided shows the initial report was not pursued as the Council took the view the threshold for a safeguarding enquiry had not been met due to insufficient evidence. However, with the second report in September 2022, the Council moved to a formal enquiry. It involved the police who then became the lead authority and the Council’s involvement ended. While I understand this was distressing for Mr Z, I cannot conclude there was fault by the Council in taking the action it did.
27. While I have found no fault by the Council in respect of the safeguarding referrals, I have also considered whether there was fault in the actions of the Council and the Care Home prior to the safeguarding referrals. Mr Z argues the Council and Care Home should have done more to help him at the time Mr X moved into the care home.
28. A council can become involved in the management of a service user’s finances in some circumstances. This would normally include situations where there is no family member able or suitable to take on this role. A council would then need to apply to formally be the deputy. In this case, Mr Z told the Council he had already made an application to the Court of Protection to become the deputy for his father. As the Council had no concerns and suitable action had been started, I find no fault in the Council’s actions when Mr X moved into the care home.
29. There is evidence to suggest the Care Home had safeguards in place in respect of personal finances. There was a safe in every room for each resident with the key kept in the main office. Any money held by the resident would be put into the safe and taken out when required.
30. Mr X enjoys going to the cinema and to the local pub and so requires cash to undertake these leisure activities. Mr Z explained that he would give money to his father when he saw him. He would put it in his wallet so he had money when he returned to the care home. There are notes which indicate care home staff would sometimes find money in Mr X’s wallet which would then be transferred to the safe in this room.
31. It seems that this informal process worked well until concerns were raised by Ms Y. The relationship between Ms Y and Mr Z had broken down and so they were not communicating directly regarding their father. This is unfortunate and meant the Care Home found itself in the middle of a family dispute. It was not the role of the Care Home to resolve the family dispute but to protect the wellbeing of Mr X. I am satisfied the Care Home took the correct action by contacting the Council to report the issues around finances.
32. However, the Council has accepted there was fault when the Care Home took over the management of Mr X’s finances without contacting it. This should not have happened before a mental capacity assessment was completed and a best interests decision made. The Council quickly carried out these actions and this resulted in the issue being referred to the CFA. While there was fault, I am not persuaded this caused a significant enough personal injustice to Mr Z to require any remedy.

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Final decision

33. I will now complete my investigation as there is no evidence of fault causing a significant injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman