Summary: Mr F complained about how the Council managed his late uncle’s property and that it did not contact him when his uncle died. We found fault which caused uncertainty. The Council has agreed to review its appointeeship policy.

The complaint

1. Mr F complains about how the Council managed his late uncle’s (Mr J’s) affairs. In particular that it:
1. failed to recognise Mr F as next of kin.
2. failed to apply for deputyship for Mr J.
3. failed to cancel attendance allowance and utility payments, including rent, when Mr J went into permanent residential care.
4. failed to advise him that the housing association had given notice on Mr J’s property and that it had to be cleared.
5. wrongly authorised a £1,500 payment for house clearance resulting in a duplicate payment being made.
6. wrongly allowed a storage company to dispose of Mr J’s belongings.
7. failed to notify him of his uncle’s death.
8. failed to provide advice on funeral arrangements.
9. delayed responding to his correspondence about the matter.
2. Mr F says this has caused him significant distress, compounding his grief and has resulted in unnecessary costs for house clearance and storage.

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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. 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. 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.
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

7. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
8. 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

9. I spoke to Mr F about his complaint and considered the information he sent and the Council’s response to my enquiries.
10. Mr F and the Council had an opportunity to comment on two draft decision statements. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Care and support

11. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs.

Protecting property of adults being cared for away from home

12. The Care and Support Statutory Guidance (paragraph 10.88) says councils must take all reasonable steps to protect the moveable property of an adult with care and support needs who is being cared for away from home, and who cannot arrange to protect their property themselves. Moveable property includes pets, private possessions and furniture.
13. Councils may enter the person’s property and remove items. A council must act where it believes that if it does not take action there is a risk of moveable property being lost or damaged.
14. Section 47(4) of the Care Act 2014 says councils may not exercise this power unless they have obtained the person’s consent. Where the person lacks capacity to give consent, the council must seek the consent of any deputy or person with power of attorney. If there is none, the council must act in the best interests of the adult in accordance with section 4 of the Mental Capacity Act 2005. Councils may not dispose of a person’s property unless they are acting as that person’s court appointed deputy.
15. If costs are incurred the council can recover any reasonable expenses from the adult whose property they are protecting.
16. The Council’s Client Property and Appointeeship team undertake this function. The client property team accepts a referral from social workers when it has received a mental capacity assessment in relation to finances.
17. The Council’s Appointeeship and Deputyship Policy Statement says, before referring, “the social worker should [check with] family members to see if they wish to be appointee/deputy or have any objections. … there is no requirement [for the social worker] to contact close family members who have had little or no involvement with the Person.”

Mental capacity

18. A person must be presumed to have capacity to make a decision unless it is established that they lack capacity. If this is in doubt, the council must carry out a mental capacity assessment in line with the Mental Capacity Act 2005. 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 Mental Capacity Act 2005 sets out the steps that decision makers must follow to determine what is in a person’s best interests.
19. When making a best interest decision a local authority must consider the person’s past and present wishes. If appropriate, it should also consider:
• the views of anyone the person wishes to be consulted;
• anyone engaged in caring for the person or interested in their welfare;
• anyone with a lasting power of attorney or any deputy appointed for the person by the Court of Protection.
20. An “appointee” is responsible for making and maintaining any benefit or pension claims on behalf of someone who is incapable of managing their own finances. The Department for Work and Pensions (DWP) decides whether the person needs an appointee and whether the person applying is suitable.

Councils’ duties when someone dies

21. Councils have a duty under Section 46 of the Public Health (Control of Disease) Act 1984 to arrange the burial/cremation of any person who has died within their area where it appears "that no suitable arrangements for the disposal of the body have been or are being made". People who typically require this type of action are those who die intestate and with no next of kin. Councils will first try to locate living relatives or friends of the deceased and won't become involved if any funeral arrangements have already been made. The Council’s public protection team carries out this role.
22. “Next of kin” is a term used to describe a person’s closest living relative or relatives. The UK does not have laws around who a person can name as their next of kin. “Next of kin” is also used to describe the person or people who stand to inherit if the person who died did not leave a will. The rules of intestacy set out how a person’s estate must be shared out. They say if a person has no spouse, children or living parents, the estate is shared equally between their siblings. If the siblings have died, their children (nieces and nephews of the deceased) will inherit in their place.

Attendance Allowance

23. Attendance Allowance is a benefit managed by the DWP paid to people over state pension age who have a disability or illness and need help with personal care. Attendance Allowance is not usually payable if someone lives in a care home and their care is paid for by the local authority.

What happened

24. Mr J lived alone. The Council arranged for carers to visit as he needed help with personal care, shopping and meals. His nephew, Mr F, visited often to support him and care for the animals he kept. In 2020, Mr F raised concerns with the Council about the home care Mr J was receiving.
25. The Council has a case record of a phone call it made to Mr F in September 2021. This says that Mr F told them that he “he has nothing to do with his uncle and no intention of”. In October 2021, there is a case record that Mr F told the social worker he was not involved in Mr J’s care. Mr F says he had told the Council he did not want to be involved with it due to the problems with the care agency.
26. In January 2022, the home care agency gave notice and the social worker visited Mr J at home. He declined an offer to go into respite care. There were concerns about self-neglect and the condition of his property.
27. A few days later Mr J fell and was taken to hospital. Mr J was discharged from hospital to a care home in February 2022. The Council spoke to the care home; the Council’s case record says it was “confirmed there was no next of kin”.
28. In response to my enquiries the care home said it had Mr F’s phone number. It is unclear whether this was provided by Mr J, Mr F or the Council.
29. The social worker visited Mr J in the care home in March 2022. Mr J agreed for a charity to take ownership of his animals and for the social worker to access his property to collect some items. A few days later the social worker visited again to assess Mr J’s care and support needs and his mental capacity to decide on his care and accommodation. These found that he required residential care and did not have the capacity to decide where he should live or what care he needed. The care and support assessment says Mr J did not have any next of kin; that Mr F had previously been very supportive but was no longer involved.
30. On 21 March 2022, the Council’s finance team wrote to Mr F about Mr J’s contributions to the costs of being in the care home. The letter says, “We understand that you are acting for [Mr J].” Mr F says he called the Council after he received this letter, but the Council does not have any records of these calls.
31. The Council appointed an independent advocate who met Mr J. In April 2022, the Council decided that it was in Mr J’s best interests to remain in the care home. There is no reference to family in the decision and Mr F was not consulted. Mr J’s Attendance Allowance could not be cancelled as there was no appointee.
32. The Council assessed Mr J’s capacity to make decisions about his finances in May 2022. It found he did not have this capacity. I have seen no evidence of a subsequent best interest decision about who should manage Mr J’s finances.
33. The social care team referred Mr J to its client property team in May 2022 to enable the Council to become Mr J’s appointee and to protect his property. The referral said Mr J had no family and there was no-one else to manage his property. Mr F says that the hospital and care home contacted him several times between May and September 2022, as Mr J’s next of kin about his care.
34. The finance mental capacity assessment was sent to the client property team but the team did not accept the referral as it had queries about the assessment. The client property team therefore did not apply for appointeeship at this point.
35. The Council told Mr J’s landlord (a housing association) that there had been a decision that he would move into permanent residential care. The landlord therefore served notice on Mr J to end his tenancy on 10 July 2022.
36. The social worker reviewed Mr J’s care and support needs and the independent advocate also visited him. Social care then sent an updated version of the capacity assessment to the client property team on 23 June 2022. The team asked for some clarification.
37. As the landlord had served notice, the client property team arranged for a company to clear Mr J’s house and store his property. The house clearance took place on 7 July 2022.
38. Mr J’s standing order for his rent could not be cancelled as the Council was not Mr J’s deputy. The client property team advised the landlord that it would apply for appointeeship but was awaiting more information about the capacity assessment. The landlord would refund Mr J’s rent once the Council, as appointee, had opened a bank account on his behalf.
39. Social care sent an amended finance capacity assessment to the client property team in November 2022. The Council then applied for appointeeship.
40. In December 2022 the care home called the Council. The Council’s case record says the care home said it had been advised not to contact Mr F. It asked for advice about who to contact in the event of Mr J’s death. I have seen no evidence the social care team called the care home back.
41. Mr J sadly died a few days later. The coroner contacted Mr F on the same day and Mr F called the Council.
42. The Council’s public protection team called Mr F the day after Mr J had died. Mr F said he wanted to arrange the funeral and had been in touch with a funeral director. He had some queries about how this would be funded. The officer said the client property team would call Mr F to discuss this.
43. The client property team called Mr F a week later to discuss how to pay for the funeral with Mr J’s estate. The Council says it advised Mr F he could deal with the estate if he wished to do so. It also looked for any other relatives.
44. The home clearance company contacted the Council about the unpaid invoice for clearance and storage. In January 2023 the total invoice amount was £2,088.95 but weekly storage costs were continuing. The client property team contacted Mr F as the invoice was to be paid from Mr J’s estate. There was then correspondence between the client property team and Mr F. I can see that there were times when Mr F chased for a response to his queries.

Mr F’s complaint

45. Mr F made a formal complaint to the Council on 3 May 2023. The Council sent a stage one response on 9 June 2023 and a stage two response on 16 June 2023. It said:
• The client property team had had no record of a next of kin.
• The Council apologised that it had not always immediately responded to Mr F. One email had not been seen initially as it had gone into the officer’s trash folder.
• The application for deputyship was not actioned as timely as it should have been. Applications to the court were taking nine to 12 months to process.
• The Council had been unable to dispose of Mr J’s property as it did not have deputyship. His items therefore had to be stored.
• The Council had not authorised the payment of an invoice from the landlord, totalling £1,502.34. Queries about this charge on Mr J’s rent would need to be pursued with the landlord.
46. Following further correspondence with Mr F, the house clearance company offered to reduce the final invoice to £2,082.25. The company also located some documents of Mr J’s, which had been in storage.
47. Mr F came to the Ombudsman. He said it was disgusting that the care home did not tell him Mr J had died and that he had had to be informed by the Coroner. He said this had cause him significant distress affecting his mental health.
48. Mr F said that if the Council had contacted him, he could have cleared Mr J’s home, so its failure to contact him had resulted in unnecessary costs. He said the landlord had also charged Mr J £1,502.34 for house clearance which was a duplication the Council should not have allowed to be paid.

My findings

49. When Mr J fell and went into hospital in February 2022, the Council had records from September and October 2021 that Mr F was no longer involved in his care. Mr F says this is wrong, that he did not want to be involved with the Council or care agency due to the problems with Mr J’s care but remained involved in Mr J’s care. I have seen no evidence that the care home asked Mr J if he had any family or anyone he wished to contact, which is what we would expect. But nor have I seen evidence that Mr F was involved in early 2022. On the balance of probability, I do not find fault in the Council’s discussion with the care home that “it was confirmed there was no next of kin”. This means the Council correctly followed its process to protect Mr J’s property by seeking his consent to enter his home and to arrange for care of his animals.
50. The Council’s care and support assessment in March 2022 also says there was no next of kin, though it is unclear if this had been discussed with Mr J. The Council’s finance team wrote to Mr F on 21 March as it understood he was Mr J’s representative. Mr F says he then contacted the Council, but the Council has no records of this. I therefore do not find evidence of fault by the Council in continuing to consider there was no next of kin. There is therefore no fault in appointing an independent advocate or in the way it made a best interest decision about Mr J’s care and accommodation.
51. In May 2022 the Council assessed Mr J’s capacity to make decisions about his finances. It found he did not have this capacity. There is no record of a best interest decision about who should therefore manage Mr J’s finances. Instead, the social worker referred to the Client property team to apply for appointeeship.
52. In response to my enquiries the Council said it had a duty under section 47 of the Care Act 2014 to protect Mr J’s property in his best interest. But the law is clear that this should only be done with the person’s consent or as a best interest decision in line with the Mental Capacity Act. I therefore find it was fault not to record a best interest decision about the management of Mr J’s finances in May 2022. But I do not consider that caused any injustice to Mr J as on balance it is likely that the outcome would have been the same; that the Council should apply to be his appointee.
53. I have considered very carefully whether the Council should have consulted with Mr F at this stage. The Mental Capacity Act Code of Practice says councils should (when appropriate) consult with anyone involved in caring for the person, or anyone with an interest in their welfare, when they make a best interest decision. As the Council considered Mr F was not involved, I do not find it was fault for the Council to not consult with him.
54. The Council’s appointeeship policy says before referring to the client property team, the social worker should check whether there is family who want to be appointee, but “there is no requirement [for the social worker] to contact close family members who have had little or no involvement with the Person.” There was therefore no fault as the Council acted in line with its policy as Mr F was not at that point involved in Mr J’s care.
55. However, I consider the policy could be clearer about what “no involvement” means. Mr F had been involved less than a year earlier, was contacted by the finance team as a representative and has since made clear that he would have wished to be contacted. Not contacting Mr F led to the referral to client property saying there was no family, which was not technically correct. I would therefore urge the Council to clarify its policy.
56. Social care sent a mental capacity assessment to the client property team in May and June 2022, but more information was needed. This clarification was not sent until November 2022. This delay was fault.
57. The delay meant the client property team could not apply for appointeeship or deputyship until November 2022. That meant Mr J’s Attendance Allowance could not be cancelled in May 2022. However, I do not consider that caused significant injustice as the benefits overpayments could be returned as they had not been spent.
58. Nor could the Council dispose of Mr J’s possessions or cancel Mr J’s direct debits and standing orders, as it was not Mr J’s deputy. However, even if the Council had applied for deputyship in May 2022, it is likely it would not have received the court order until about February 2023. So, I do not find there was any injustice caused by the delay in clarifying the mental capacity assessment for finances.
59. Although Mr J had given consent in February 2022 for the Council to enter his home and take some items, there was no separate best interest decision about putting all his possessions in storage. This was fault, as separate best interest decisions are needed for specific decisions. But as I have found there was no fault in not consulting Mr F, I do not consider any injustice was caused. On balance, it is likely that the decision would have been the same as the property had to be cleared as the landlord had given notice.
60. As the Council was following its policy of not contacting family who were not involved, there was no fault that it did not tell Mr F about the house clearance and that the landlord had given notice on Mr J’s property.
61. In December 2022, the care home asked the Council for advice about who to contact in the event of Mr J’s death. I have seen no evidence the Council called the care home back. This was fault. Whilst the social worker may have told the care home that there was no next of kin and no family involved, my view is there is injustice to Mr F here as he can never be sure if the Council may have advised the care home to call him. In response to my first draft decision, Mr F said he did not wish to receive an apology from the Council as this would only be lip service.
62. Mr F complained that the public protection team did not call him back as promised in December 2022. The case records show that the public protection officer said the client property team would contact him about the finances for the funeral. The client property team called Mr F a week later. I do not find fault.
63. The Council has already apologised for the delays in its contact with Mr F in 2023. This is an appropriate and proportionate remedy for the injustice caused.
64. Mr F complained the Council had wrongly authorised a £1,502.34 payment to the landlord for house clearance, resulting in a duplicate payment being made. The Council says this was a charge the landlord placed on Mr J’s rental account, rather than an invoice it paid. There was therefore no fault by the Council.
65. As set out in paragraph 7 above, the law says I cannot investigate the actions of the landlord or the charges they have made to Mr J, as this is outside our jurisdiction. Mr F may wish to pursue this with the landlord.

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Agreed action

66. Within a month of my final decision, the Council has agreed to review its appointeeship and deputyship policy statement to clarify that best interest decisions should be recorded before applications for appointeeship are made or house clearances are done.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman