Summary: Mr X complained the Council failed to protect his late sister in-law, Ms Y, from financial abuse. There was no fault in the way the Council investigated Mr X’s concerns under its safeguarding procedures. However, the Council was at fault for not applying for deputyship to manage Ms Y’s finances when her capital reached the limit set out in the Council’s policy. This caused Mr X and his wife distress and uncertainty. The Council has already apologised to Mr X. It did not cause an injustice to Ms Y as there was no evidence the Council mismanaged her finances. In addition, the Council has amended its policy to prevent a recurrence of fault.

The complaint

1. Mr X complained the Council failed to protect his late sister in-law, Ms Y’s, finances whilst the Council provided her with care and support. He said as a result, there was a significant amount of unexplained expenditure from Ms Y’s bank account. Mr X said it caused him and his wife distress. He wants the Council to complete a thorough investigation of what happened, acknowledge it was at fault and put measures in place to prevent a recurrence of fault. Mr X also wants the Council to apologise to him and his wife and provide a financial remedy for the injustice caused.

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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 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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) I decided to investigate Mr X’s complaint which is based on matters between June 2021 and March 2023 because Mr X did not become aware of the matters until March 2023 and he was not able to complain to us sooner due to other ongoing investigations.
5. 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

6. I spoke with Mr X and considered information he provided.
7. I considered information provided by the Council.
8. Mr X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Safeguarding adults

9. Under Section 42 of the Care Act 2014, a council must make enquiries if it has reason to suspect an adult within its area:
• has care and support needs;
• is experiencing or is at risk of abuse or neglect; and
• is unable to protect themselves against the abuse, neglect or the risk of it.
10. 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 adult 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 adult from abuse.
11. If the adult does not meet the criteria as outlined in paragraph nine but the council believes an investigation is required, it should complete an investigation under ‘other safeguarding enquiry’.

Shared Lives

12. Shared Lives offers an adult who has long-term care and support needs to live independently in their community. The Shared Lives scheme matches people who need care and support with an approved Shared Lives carer. Some people regularly visit their carer during the day and some people live with their carer in their home. The scheme is managed or commissioned by councils.

The Council’s appointee and deputyship policy 2019

13. The Council’s Client Financial Affairs Team can manage the property and financial affairs of someone who:
• is receiving care and support from the Council’s services;
• lacks the mental capacity to manage their own property and financial affairs;
• has no appropriate person such as a family member or a friend to take on the role; and
• has no current appointee, deputy or Lasting Power of Attorney.
14. The Client Financial Affairs Team can act in the role of an appointee or a deputyship. The appointee role allows the Client Financial Affairs Team to act on behalf of the person using the service in respect of claiming and receiving benefits. The Client Financial Affairs Team can use the benefits to provide statutory personal allowances, pay care charges and assist with paying bills. An online bank account is used to solely manage these activities.
15. If the capital of the person using the service reaches £10,000, the Client Financial Affairs Team will apply to the Court of Protection for the role of a deputyship. The Client Financial Affairs Team will apply fees if they are required to apply for the role of a deputyship. These fees cover the process of the application, appointment and regular supervision of the deputy. The role of the deputyship takes on full responsibility of all property and financial affairs of the person using the service.

The Care Quality Commission CQC

16. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.

What happened

17. Ms Y had a learning and physical disability. She required support for her care needs to be met. In June 2021, Ms Y moved into the home of a carer who was part of the Shared Lives scheme. The Shared Lives Carer provided care and support to Ms Y. Ms Y also had two other carers who supported her care needs.
18. Ms Y had no Lasting Power of Attorney or an appropriate person to manage her finances. In August 2021, the Council referred Ms Y to the Client Financial Affairs Team to explore the option of it becoming an appointee for Ms Y.
19. In September 2021, the Council completed a review of Ms Y’s care needs. The review recorded Ms Y:
• lacked the mental capacity to manage her finances. At the time, Ms Y’s Shared Lives Carer was supporting her with managing her money and kept all receipts of expenses paid; and
• struggled accessing her Shared Lives Carer’s car. Ms Y and the Carer had explored the option of getting a mobility car through her benefits.
20. Towards the end of September 2021, the Client Financial Affairs Team became the appointee for Ms Y.
21. In September 2022, Ms Y’s capital reached £10,999. In December 2022, Ms Y’s capital increased further. However, the Council did not apply for deputyship.
22. Ms Y was admitted to hospital towards the end of January 2023. Ms Y later died in March 2023.

Mr X’s allegations

23. Following Ms Y’s death, Mr X contacted the CQC and raised concerns of financial abuse against Ms Y’s Shared Lives Carer as he had recently noticed suspicious activity on her account. Mr X said:
• during Ms Y’s residence with her Shared Lives Carer, there were large unexplained cash withdrawals from Ms Y’s account;
• whilst Ms Y was in hospital, there had been unexplained cash withdrawals from her account;
• Ms Y had signed a credit agreement for a mobility car which was concerning as she had limited capacity to make such decisions; and
• Ms Y had purchased a washing machine and he questioned why this was required.

The CQC made a safeguarding referral to the Council.

24. Mr X also complained to the Council that it had failed to protect Ms Y against financial abuse.
25. The Council did not complete a Section 42 safeguarding investigation as Ms Y had died. However, the Council did complete an investigation under ‘other safeguarding enquiry’. As part of its investigation, the Council considered information from:
• the Client Financial Affairs Team;
• the Manager and Quality Monitoring Officer of Shared Lives;
• the Financial Abuse Safeguarding Officer;
• the Police;
• information from Mr X; and
• information from Ms Y’s carers.
26. The Council’s safeguarding investigation found:
• the Client Financial Affairs Team received Ms Y’s benefits and from the benefits, it paid the Shared Lives Carer for rent and food;
• Ms Y had her own personal bank account which contained her personal funds. Ms Y’s carers supported Ms Y to use her personal bank account for her personal expenditure. Documents showed Ms Y had spent money from her personal bank account on her activities, holidays and meals;
• Ms Y had purchased a washing machine to support her continence. This was discussed and agreed with the Client Financial Affairs Team;
• Ms Y had considered getting a mobility car however she did not go ahead with it. The Client Financial Affairs Team would have had the responsibility of signing any agreement for a mobility car and had not signed one;
• there was an agreement in place where Ms Y would pay cash to her carers for mileage costs. Money was withdrawn from Ms Y’s bank account whilst she was in hospital. Ms Y had used this money to pay mileage costs to her carers. The Shared Lives Manager had authorised carers to regularly visit Ms Y for several weeks whilst she was in hospital;
• previous records since Ms Y became part of the Shared Lives scheme were reviewed and there were no concerns; and
• the Police had reviewed a detailed spending record of Ms Y’s personal bank account and found records were being maintained in relation to the activity on Ms Y’s account and an explanation provided for the purchases made as a result. It found there was insufficient evidence which supported Mr X’s allegations of fraud against the Shared Lives carer.
27. The Council found no evidence Ms Y’s finances were mismanaged and concluded the safeguarding concern as unsubstantiated.
28. Later, the Council responded to Mr X’s complaint. The Council told Mr X:
• it did not apply for deputyship when Ms Y’s capital reached just over £10,000 in September 2022 as there would have been costs involved with applying for deputyship and for maintaining it;
• it should have applied for deputyship when Ms Y’s capital increased further in December 2022. The Council said it was an administrative error not to apply for it later and apologised for the fault; and
• it had decided to amend its current policy to highlight to staff the capital of people who use the service in the community differs to those living in residential care settings as it is subject to change with housing costs etc.
29. Mr X remained unhappy and complained to us. As part of his complaint, Mr X provided us with bank statements of Ms Y’s personal bank account. The bank statements showed Ms Y had over £15,000 in her account in June 2021 and by January 2023, she had just over £5,000 remaining. Mr X said the Council was aware of Ms Y’s personal bank account and had failed to protect it.
30. In response to my enquiries, the Council said it was aware of Ms Y’s personal bank account when it became an appointee but as an appointee, it had no access to it and only had access to the account into which Ms Y received her benefits. It had considered the Police enquiry in relation to Ms Y’s personal bank account which found there was insufficient evidence to support Mr X’s allegations of fraud, as part of its safeguarding investigation.

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Findings

31. In response to Mr X’s concerns, the Council carried out an investigation under ‘other safeguarding enquiry’. It consulted with a range of professionals involved with Ms Y’s care. It also considered the Police investigation about Ms Y’s personal bank account which found there was insufficient evidence to support the allegations of fraud. The Council’s investigation was appropriate and proportionate. There was no fault with how the Council investigated Mr X’s concerns.
32. The Council acknowledged it should have applied for deputyship when Ms Y’s capital increased in December 2022. Its failure to do so was fault. This caused Mr X distress and frustration. The Council in its complaint response to Mr X acknowledged this was an administrative error and apologised to Mr X. However, there is no evidence this caused Ms Y an injustice as there was no apparent mismanagement of her funds and her expenditure was accounted for. The Council agreed to amend its policy which would prevent a recurrence of the fault which was appropriate.

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Final Decision

33. I have now completed my investigation. The Council was at fault but there was no injustice caused to Ms Y. There was some distress and uncertainty caused to Mr X but the Council has already provided an appropriate remedy with an apology.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman