Summary: Mr X complained on behalf of his mother Miss Y about how the Council charged for a temporary care home, made her sign a document, managed her money, and decided to apply to the Court of Protection for deputyship. He said this caused Miss Y distress. We do not find the Council at fault.

The complaint

1. Mr X complains about the way the Council handled his mother’s, Miss Y’s, temporary care home charges, and access to her money and deputyship proceedings. In particular he complains the Council:

• Claimed it would pay for a temporary care home but then subsequently charged Miss Y.
• Coerced and shouted at Miss Y to sign an advocacy permission document behind the family’s backs.
• Did not pay Miss Y’s bills or allow her access to her money to spend it on the things she wanted.
• Applied for a deputyship to take control of Miss Y’s money unnecessarily and against her wishes.

2. Mr X said the Council’s actions upset and worried Miss Y because it stopped her from going out, doing the things she used to enjoy and caused her to owe money on her bills.

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The Ombudsman’s role and powers

3. 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)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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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What I have and have not investigated

8. I have investigated the Council’s actions from June 2023 when Miss Y moved into temporary residential care. My investigation ends in November 2024 when Mr X complained to us.
9. I cannot investigate a complaint about the start of court action or what happened in court. Therefore I have not investigated any matters considered by the Court of Protection regarding the application for deputyship.

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How I considered this complaint

10. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
11. 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

Relevant law and guidance

Charging for temporary residential care

12. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period.
13. A council can choose whether to charge a person where it is arranging to meet their needs. In the case of a temporary resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.

Mental Capacity Act and assessments

14. 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.
15. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

16. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
17. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

18. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made.
19. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Independent Advocacy

20. The Adult Social Care Statutory Guidance (the Statutory Guidance) states local authorities must involve people in decisions made about them and their care and support or where there is to be a safeguarding enquiry. Involvement requires the local authority helping people to understand how they can be involved, how they can contribute and take part and sometimes lead or direct the process.
21. Local authorities must form a judgment about whether a person has substantial difficulty in being involved with these processes. If it is thought that they do, and that there is no appropriate individual to support and represent them for the purpose of facilitating their involvement, then the local authority must arrange for an independent advocate to support and represent the person.

Court of Protection

22. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
23. 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 (LPA) or Enduring Power of Attorney (EPA) is valid; and
• removes deputies or attorneys who fail to carry out their duties.

24. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Court-appointed Deputies

25. If there is a need for continuing decision-making powers and there is no relevant EPA or LPA, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys and court-appointed deputies and produces detailed guidance for them.

What happened

26. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
27. Miss Y is elderly and has physical and cognitive impairments. She lived with her son, Mr X, who looked after her finances.
28. The Council decided to arrange for Miss Y to move into temporary residential accommodation which she did in June 2023. It made this decision because there was limited space with Mr X. The intention was for Miss Y to move from the temporary accommodation to long-term accommodation in a retirement flat with on-site adult care services.
29. A social worker from the Council spoke to Mr X about the financial assessment process and charging procedure. Mr X was happy to be the representative for Miss Y’s finances. The Council spoke to him but he did not have the paperwork for the Council to do a full assessment, so it explained it would do a “light touch” assessment by checking her benefits. It calculated her temporary residential care charges.
30. Miss Y received invoices for the cost of the care later in 2023. Mr X said he tried to raise concerns with the Council. He said a social worker had told him the Council would pay for the care. The Council said it tried to contact him by phone during this period but he did not reply.
31. In December the Council allocated Miss Y a different social worker. They contacted Mr X and spoke to him about doing a full financial assessment. They requested some of Miss Y’s bank statements for the financial assessment which Mr X provided.
32. In January 2024 Miss Y moved into her retirement flat as planned. The social worker did a social care assessment with her and with Mr X present. Mr X was concerned Miss Y might not be able to pay the assessed charge. The social worker made them aware of the charging policy.
33. In February Miss Y’s social worker contacted Mr X about the financial assessment. They asked Mr X for a call to discuss some large cash withdrawals on Miss Y’s bank statements.
34. The Council started a safeguarding enquiry in February. It did so because it was concerned Miss Y was vulnerable and the large cash withdrawals indicated her finances might not have been managed in her best interests.
35. Miss Y’s social worker visited and spoke to Miss Y in February and March as part of the safeguarding enquiry. They carried out mental capacity assessments of Miss Y and concluded she did not have capacity regarding the safeguarding enquiry and management of her finances.
36. Mr X wrote to the Council with his concerns a number of times during the safeguarding enquiry, including a formal complaint in February. He was unhappy Miss Y’s social worker had visited Miss Y without him there. He said the Council was harassing her. He complained the Council had asked questions about Miss Y’s money which was none of its business. He also complained the Council had said it would cover the cost of the temporary accommodation in June 2023.
37. Miss Y’s social worker contacted Mr X and explained the reasons for visiting Miss Y. They explained the Council’s concerns that had led to the safeguarding enquiry. They asked Mr X for some more information about Miss Y’s finances. They also raised the option of a deputyship if he wished to stop managing her finances.
38. In April Mr X contacted the Council. He said he would no longer manage Miss Y’s finances for her and did not want to be contacted.
39. Miss Y’s social worker decided to appoint an Independent Mental Capacity Advocate (IMCA) for Miss Y. IMCA is a type of statutory advocacy introduced by the Mental Capacity Act 2005. An advocate is someone who supports a person so that their views are heard and their rights are upheld. The social worker sent an advocacy consent form to the on-site care provider and requested it ask Miss Y to sign it. The care provider returned the signed form and an IMCA was assigned.
40. At the beginning of May the social worker and IMCA visited Miss Y. The IMCA provided a written report about the visit. After the visit the Council decided to apply for the deputyship for Miss Y to manage her finances. Miss Y’s social worker made a referral to the Council’s Deputyship Team to start the process.
41. Miss Y’s social worker also made arrangements with the on-site care provider and other family members of Miss Y to help her access money and pay for shopping in the meantime.
42. At the end of May Mr X decided to start managing Miss Y’s finances again.
43. The Council concluded its safeguarding enquiry in June. It took no formal action, but it remained concerned Miss Y’s finances might not have been managed in her best interests.
44. As Mr X had started managing her finances again the Miss Y’s social worker contacted him and asked him to help complete financial assessment. They raised a concern that Miss Y might accrue further debt as she was not paying for her care package whilst the financial assessment was ongoing.
45. The Council recorded that Mr X did not provide the information it requested to complete the financial assessment.
46. In August the Council’s Deputyship Team became Appointee for Miss Y’s benefits. This meant the Council was responsible for spending Miss Y’s benefits in her best interests. Mr X raised concerns about this and had a telephone conversation with Miss Y’s social worker. They explained the Council’s role as Appointee, and that arrangements that had been made with the on-site care provider so Miss Y could pay for food shopping.
47. Miss Y’s social worker visited her at the end of August following Mr X’s concerns. They noted food in her cupboards and fridge and that the carers were supporting her.
48. In September Mr X escalated his complaint to stage two. He reiterated the complaints he had made in February. He also complained about the arrangements since the Council had become Appointee. He said Miss Y was unhappy at not having access to her own money and with her current accommodation. He said he thought the Council had applied to take over Miss Y’s money to pay the debt for the temporary care home stay in 2023.
49. Also in September the Council formally notified Miss Y of the application for deputyship.
50. In October Miss Y’s social worker emailed Mr X about his further concerns regarding Miss Y’s access to money and shopping. They explained the role of the Council as Appointee again, and explained the deputyship application would be submitted to the Court of Protection with Mr X’s objections.
51. Later in October, the Council formally responded to Mr X’s stage two complaint. It explained the actions taken regarding the safeguarding enquiry, appointment of an IMCA, and deputyship application which was ongoing. It explained the Council had been appointed as Miss Y’s Appointee to support her with her benefits and bills whilst the application was ongoing. It did not uphold any elements of Mr X’s complaint.
52. Mr X complained to us on behalf of Miss Y in November.

Analysis

Payment for the temporary care home

53. Mr X said a specific social worker from the Council told him the Council would pay for the temporary care home in June 2023. The social worker subsequently left.
54. I have seen case notes the social worker made of conversations with Mr X at that time. The notes state the social worker discussed the start of the financial assessment process and charging procedure. There is no record the social worker said the Council would cover the cost. There is no other evidence in support of Mr X’s allegation. Because of this I do not find the Council at fault for this part of Mr X’s complaint.

Signing the advocacy permission document

55. Miss Y signed this document in April 2024. Mr X first complained to the Council about it in September 2024. He complained a family member had shouted at Miss Y to get her to sign the form in the presence of a Council social worker and care staff. He complained Miss Y did not have capacity to sign the form.
56. The Council’s decision to appoint and advocate for Miss Y followed it concerns about her capacity and Mr X’s decision he wanted to stop helping her with her finances. It was therefore in line with the guidance. There is evidence the Council social worker was not present when Miss Y’s family member allegedly shouted at her. I do not have the power to investigate allegations about the behaviour of Miss Y’s family member. For these reasons I find no fault with the Council’s actions about this part of Mr X’s complaint.

Management of Miss Y’s finances before the deputyship application was made

57. Miss Y needed help with managing with her finances from the end of April 2024 when Mr X told the Council he would no longer help her.
58. Miss Y’s social worker took action from the beginning of May to assist Miss Y to with cash withdrawals and shopping. They did this by contacting and coordinating assistance from Miss Y’s on-site care provider and other family members.
59. I note Mr X subsequently raised concerns with the Council about Miss Y’s access to money, lack of shopping and her bills not being paid.
60. The Council’s social worker took action and responded to Mr X following his concerns. The actions included assessments and visits to Miss Y, and regular contact with the on-site care provider, other family members and the Council’s Deputyship Team when it was carrying out is role as Appointee. It noted any debts that Miss Y had could be resolved if deputyship was granted. The Council maintained records of its actions.
61. I find the records demonstrate the Council took appropriate steps to help Miss Y with her finances before the deputyship proceedings commenced. For these reasons I find no fault with the Council’s actions about this part of Mr X’s complaint.

Application for the deputyship

62. I cannot investigate a complaint about the start of court action or what happened in court. Therefore I cannot make any findings about the Council’s application to the Court of Protection for deputyship or what the Court decided.
63. I can consider the Council’s actions leading up to the application to the Court. The relevant actions in this case were its mental capacity assessments of Miss Y because these informed its decision to apply for deputyship. I have therefore investigated whether there was any fault in how the Council carried out the assessments.
64. The Council’s records of the assessments clearly set out the decisions that Miss Y needed to make about the safeguarding enquiry and her finances. The records also set out the assessor’s view of Miss Y’s abilities to understand, retain and use information to reach and communicate her decisions. The assessor took into account the views of Miss Y, those engaged in caring for her, and the IMCA. For these reasons I find no fault in the way the Council carried out the mental capacity assessments. Because there was no fault in how the Council made its decisions, I cannot question the outcome.

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Decision

65. For the reasons explained in the analysis section I have completed my investigation and do not uphold the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman