Summary: Mr X complained about how the Council handled his brother, Mr C’s, care. Mr X told us this impacted his mental and physical health. We have found no fault in the Council’s actions.

The complaint

1. Mr X complained the Council failed to provide enough care and support for his brother, Mr C. Mr X complained the Council:
• Failed to communicate with him and involve him in his brother’s care
• Ignored advice of professionals
• Wrongly alleged he had financially abused his brother
• Took control of Mr C’s finances and have not provided him with sufficient access to his funds
• Failed to refer Mr C to Bournemouth social services now he has moved into their area.

Mr X told us the Council’s actions have impacted his mental and physical health. Mr X would like the Council to refer Mr C’s care to Bournemouth Council.

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The Ombudsman’s role and powers

2. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS. (Local Government Act 1974, sections 25 and 34(1), as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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(1), as amended)

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What I have and have not investigated

6. I cannot investigate matters about what happened during Mr C’s hospital stay.
7. There may be some cases where a council considers it proper for the person’s care and support needs to be met by providing accommodation in another council area. Section 39 to 41 of the Care Act set out what should happen in these cases. They specify which council is responsible for the person’s care and support when they are placed in another council area. The principle is the person placed ‘out of area’ is considered to continue to be ordinarily resident in the first or ‘placing’ authority area and so does not get an ordinary residence in the ‘host’ or second authority. The council which arranges the accommodation, therefore, keeps responsibility for meeting the person’s needs. For this reason, I am not investigating Mr X’s complaint about referring Mr C’s care to Bournemouth Council social services.
8. My investigation will look at the Council’s actions in providing Mr C’s care, and its communication with Mr X, between October 2023 and July 2024.

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How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

Safeguarding

11. 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)

Charging and financial assessments

12. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
13. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
14. The Council must leave the person with a specified amount of their income, so they have money to spend on personal items.

Mental capacity and best interest decision making

15. 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.
16. 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.
17. 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' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

Background

18. Mr C is living with a condition that causes gradual changes in memory and how he processes information.
19. Council records show Mr C had several family members who were in contact with the Council about his care between October 2023 and October 2024. None of these family members held lasting power of attorney for Mr C. Mr X was not in contact with these family members.
20. The Council completed an assessment of Mr C’s care needs in August 2023. Following the care assessment, the Council referred Mr C for support with taking his medication. A long-term package of care began in September 2023 which included carers visiting Mr C twice a day to support him at home.

What happened

21. The following is a summary of key events. It is not intended to be a detailed chronology.
22. Mr X contacted the Council in October 2023 to raise a concern Mr C was at risk of financial abuse from his adult child, B. Mr X asked for a third party to manage Mr C’s finances. Mr X also asked the Council to include him in any future decisions about Mr C’s care.
23. Following Mr X’s call, the Council attempted to visit Mr C to carry out a mental capacity assessment to determine whether he had capacity to manage his finances. Mr C was not home at the time of the visit and did not engage with phone calls from his allocated social worker.
24. In November 2023 Mr C was assaulted in the community. Mr X reported the assault to the adult social care team. The Council also received reports from the NHS and police about the assault.
25. Following the reports of assault and alleged financial abuse, the Council contacted Mr C multiple times to arrange a welfare visit. Mr C did not engage with the Council.
26. Mr C’s care team contacted the Council at the beginning of February 2024 to explain it was having difficulties delivering his care as he was not at home. The Council discussed these issues with Mr X. Mr X raised further concerns about Mr C’s welfare.
27. The Council completed a successful home visit in the second week of February 2024. Mr X and Mr C were present during the visit. It was agreed the Council would close the safeguarding concern as Mr C told the Council B was not involved in his finances. Mr X agreed to support Mr C with his finances. The Council were unable to complete a mental capacity assessment but assumed capacity as Mr C was able to engage in conversation about his finances and understood the risk of overspending.
28. Between the end of February 2024 and the middle of March 2024 there was a decline in Mr C’s engagement with his care team. Concerns were raised by Mr C’s family that he was not managing his money well and they were increasingly concerned for his welfare.
29. The Council continued to make efforts to monitor Mr C’s welfare, however Mr C refused to engage with the Council and his care workers.
30. Mr C was admitted to hospital at the beginning of April 2024.
31. The Council completed a mental capacity assessment which determined Mr C did not have capacity to decide where he should live following his discharge from the hospital. A multi-disciplinary team recommended Mr C be discharged to a residential home.
32. Mr X was involved with the Council’s best interest decision making to discharge Mr C to a nursing home. Mr X requested the Council find Mr C a placement close to Mr X’s home to allow him to visit frequently.
33. In line with Mr X’s request, Mr C was discharged to a care home in Mr X’s local area.

Mr C’s finances

34. During Mr C’s hospital admission, hospital staff raised a safeguarding concern about the misuse of Mr C’s finances by Mr X.
35. The Council completed an initial safeguarding enquiry which determined that a full section 42 safeguarding enquiry was not necessary, but a protection plan was agreed with B and Mr X to safeguard Mr C’s finances.
36. As part of the protection plan the Council completed a mental capacity assessment which determined Mr C did not have capacity to independently manage his finances. The Council’s final decision was to complete the following actions:
• Refer Mr C to the Client Money Management Team (CMMT)
• Complete Court of Protection forms
• Recommend an appointeeship to safeguard Mr C’s finances
• Recommend moving Mr C to a nursing home
37. Prior to Mr C’s hospital admission, Mr C would purchase high numbers of scratchcards as well as food and cigarettes daily. Mr X believed Mr C should have access to his money to continue to purchase these items as part of his daily routine.
38. The CMMT started to receive benefits for Mr C from July 2024. They completed a financial assessment to determine the amount Mr C paid towards his care and his personal allowance. Mr C’s personal allowance was paid into his residents account and managed by the care provider.
39. In accordance with Mr C’s financial assessment, the Council arranged for Mr C’s benefits to contribute towards the cost of his placement. The Council also arranged for Mr C to have a weekly allowance to spend on scratchcards. Mr X disagreed this amount was reasonable and did not cover the costs of Mr C’s scratchcards. Mr X began fund Mr C’s scratchcards with his own money.
40. In response to our enquiries the Council told us it has refunded approximately £480 to Mr X which is money he had spent supporting his brother. The CMMT has also arranged for Mr X to assist Mr C with any reasonable personal expenses from Mr C’s weekly allowance, so long as suitable receipts are provided.

My findings

41. There is no evidence of fault in the Council’s actions in supporting Mr C’s care needs between October 2023 and his hospital admission in April 2024. The Council were aware of Mr C’s care needs and his increasing refusal to allow social workers and care workers into his home. The Council took steps to address concerns for Mr C’s welfare and continued to monitor his wellbeing.
42. There is no evidence of fault in the Council’s communication with Mr X between October 2023 and July 2024. The Council remained in contact with Mr X where possible, however, as Mr C had multiple family members in contact with the Council, Mr X was not always the first family member to be contacted. The Council informed B of all relevant information and kept them involved in decision making where necessary.
43. There is no evidence the Council ignored advice from professionals. Council records show it reacted to referrals from other bodies, and it made best interest decisions which considered all the information available.
44. There is no evidence the Council alleged Mr X financially abused Mr C. The Council received a safeguarding referral from hospital staff. The Council has a duty to act on safeguarding concerns, and it did so in line with section 42 of the Care Act.
45. There is no evidence of fault in the Council’s decision to support Mr C when it determined he did not have the capacity to manage his own finances. The Council had received safeguarding concerns about the management of Mr C’s finances, and it took steps, in agreement with Mr C’s family to refer him for suitable support.
46. Although Mr X does not agree with the weekly allowance provided to Mr C for personal spending, the Council has a responsibility to ensure Mr C’s finances are used suitably and proportionately to his income. The Council completed a financial assessment and determined Mr C’s weekly allowance in accordance with the assessment. There is no evidence of fault in the way the Council made its decision.

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Decision

47. I find fault no fault in the Councils actions.

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Investigator's decision on behalf of the Ombudsman