Summary: Mr X complained about the Council’s actions and decisions in its role as an appointee for this late brother, Mr Y’s, finances who lived in a nursing home. There was no fault in the Council’s decisions around Mr Y’s finances which were made with his best interests in mind. The Council was at fault for failing to consider whether to apply to the Court of Protection to become Mr Y’s deputy but that did not cause Mr X an injustice. The Council agreed to remind relevant officers of when to consider applying to the Court of Protection, in line with its policy.

The complaint

1. Mr X complained about the Council’s actions and decisions in its role as an appointee for his brother, Mr Y’s, finances who lived in a care home. Specifically, Mr X complained:
• The Council failed to investigate another family member misappropriating funds from Mr Y’s account.
• The Council will not allow him to use Mr Y’s money to buy a car to use to take Mr Y out on trips.
• The Council will not allow him to take Mr Y out on day trips or give him expenses to do so.
• Two Council’s officers turned up at his home unannounced and interrogated him about the complaints he made.
• The Council has failed to respond to a Subject Access Request (SAR) he made for information relating to Mr Y’s finances.
2. Mr X said the Council’s actions have caused him upset, uncertainty and have impacted on his relationship with Mr Y.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
6. If we are satisfied with a council’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

7. I spoke to Mr X on the telephone about his complaint.
8. I considered information from the Council and its response to my enquiry letter.
9. Mr X and the Council had the opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Mental Capacity and managing finances

10. 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.
11. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. 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.
12. The Council has a ‘statement of purpose’ which outlines the circumstances in which it may manage someone’s finances if they do not have the mental capacity to do so. It says in most cases, family, close friends or solicitors provide the necessary support however where there are no suitable arrangements, the Council will consider acting as an Appointee or as a court appointed deputy.

Appointee

13. An appointee is authorised by the Department for Work and Pensions (DWP) to receive benefits on behalf of a person who lacks mental or physical capacity to manage their own financial affairs. The appointee is responsible for making benefit claims and telling DWP of any changes which might affect benefits. An appointee does not have the authority to deal with any capital or other income belonging to the person. In this case, a Court of Protection Deputyship order is required.

Court-appointed deputies

14. The Council’s statement of purpose states it will make applications to the Court of Protection in certain circumstances, including where the person’s savings/assets are generally greater than £5,000. The deputy’s role is to look after the finances of the person and act in the best interests of the person for whom they are deputy.

What happened

Background

15. Mr X had a brother, Mr Y, who lived in a nursing home and had an allocated social worker. Mr Y had a diagnosis of dementia and other illnesses and his place at the nursing home was Continuing Health Care (NHS) funded. Mr Y had moved into the nursing home in 2018 following a period in hospital. Records show there was no power of attorney in place for Mr Y although they show his niece, Ms T played a large supporting role in his life and was recorded as his next of kin on Mr Y’s care and support plan. The plan showed Mr X was also involved in Mr Y’s care assessments and records show he also visited Mr Y regularly.
16. Records show Ms T had supported Mr Y with managing his finances. Mr Y’s finances consisted of income from a state pension and some benefits and in 2018 his bank account stood at just over £6,000.
17. Records show the Council began acting as Mr Y’s appointee at the end of 2018. Records show Mr Y agreed for the Council to manage his income although he asked to retain some independence and access to funds by way of a weekly allowance. A case note from 2019 shows the Council completed a mental capacity assessment with Mr Y which showed he was able to retain some information and remained consistent in his view that he wished the Council to manage his finances. Records show Ms T supported this as she referenced animosity between family members, including Mr X, about Mr Y’s finances. The Council said Mr X would call Mr Y daily and raise the topic of money despite the social worker asking Mr X to refrain from doing so because it made Mr Y distressed.
18. At the time of Mr X’s complaint to us Mr Y no longer had mental capacity. His bank account balance stood at nearly £16k and the Council remained as his appointee.

Mr X’s complaints

19. Mr X’s complaint is about a number of concerns he has raised with the Council which occurred between 2019 and 2021 and mainly concern how the Council managed aspects of Mr Y’s finances. Records show Mr X frequently called the Council to raise his concerns, so the Council decided to treat them as a formal complaint in 2021. The Council’s final response to Mr X addressed each of his complaints as follows:
20. Mr X complained Ms T had stolen money from Mr Y’s bank account during 2019. He said Ms T withdrew 2 x £500 amounts from Mr Y’s bank and he wanted an explanation of where the money had gone. The Council told Mr X that Ms T withdrew 2 x £500 amounts of cash and then deposited them into the safe at the nursing home, so Mr Y had access to cash. The Council said it could not comment further and advised Mr X to make a subject access request if he wished access to Mr Y’s records.
21. Mr X complained the Council refused his request for £2,000 of Mr Y’s money to buy a car so he could take Mr Y out on day trips. The Council said to Mr X that it was not an appropriate use of Mr Y’s money as the car would belong to Mr X, or not Mr Y.
22. Mr X complained the Council and the nursing home refused to let him take Mr Y out on day trips. The Council explained to Mr X that the nursing home had carried out a risk assessment and decided the risk was too high to allow Mr X to take Mr Y out alone. It said interactions between Mr X and Mr Y would regularly lead to one, or both becoming upset and because of Mr Y’s disability would lead to aggressive outbursts. The nursing home decided therefore it was not safe for Mr X to take Mr Y out alone. The Council supported the nursing home’s position however offered a one-to-one support worker to accompany them on an outing to assist. Mr X declined this.
23. Mr X also complained about a visit by two Council officers to his house. Records show a social worker and a professional from the community mental health team visited Mr X. This was after the Council had concerns that Mr X may have his own care needs and due to his frequent contacts with the Council. Records show the Council pre-arranged the visit and attended in line with the appointment which Mr X kept. The case notes show Mr X spoke with the officers outside and discussed his complaints with the officers. The case notes show Mr X told the officers he was unhappy frustrated, stressed and anxious. The officers offered to try and organise support for Mr X but he declined this.
24. The Council said it remained satisfied that Mr X’s concerns about Mr Y were not shared by anyone else and that Mr Y was happy and well cared for at the nursing home.
25. Mr X was unhappy with the Council’s response to his concerns and complained to us. He reiterated to us the same complaints he made to the Council. Mr X further complained that he made a SAR to the Council but had no response.
26. Since Mr X complained to us Mr Y has died.

My findings

27. Records show Mr X has made regular complaints over the last two years to the Council around Mr Y, particularly around his finances. This culminated in the Council treating the substantive issues as a formal complaint. I have separated my findings below for ease of reading.

Failing to investigate another family member misappropriating funds from Mr Y’s account.

28. Mr X said Ms T stole 2 x £500 amounts from Mr Y’s account. I have seen statements showing the withdrawals and I have also seen records showing Ms T deposited the amounts into the safe at the nursing home. The Council provided Mr X with this explanation and was not at fault. If Mr X still believes Ms T committed a crime it is open for him to report it to the police. Further investigation into this by me would not lead to a different finding.

The Council would not allow him to use Mr Y’s money to buy a car to use to take Mr Y out on trips

29. The Council was Mr Y’s appointee and records show it was Mr Y’s wish for the Council to administer his finances. This arrangement was in place since 2019 and Mr Y made that decision when he still had some mental capacity to do so. As appointee however the Council was only responsible for administering Mr Y’s benefits and other payments from the DWP. At the point of Mr X’s request Mr Y had in excess of £15,000 in his bank account which met the criteria for the Council to consider applying to the Court of Protection for deputyship.
30. The Council decided it was not in Mr Y’s best interests to give £2,000 to Mr X to purchase a vehicle. There was no formal arrangement in place for it to act on Mr Y’s behalf with regards to his bank account savings. Although the Council was acting in Mr Y’s best interests, best practice would have been to consider applying for deputyship, in line with its policy. There is no evidence the Council considered whether to do this which was fault. However, the fault did not cause Mr X an injustice because the Council’s decision would likely have been the same if it was acting as an appointed deputy.

The Council would not allow him to take Mr Y out on day trips or give him expenses to do so

31. Mr X had asked during 2021 to take Mr Y out on trips. The nursing home completed a risk assessment and decided this would lead to a high risk of aggression and hostility between Mr X and Mr Y. It decided Mr X could take out Mr Y if accompanied by a member of staff or if other mitigation was put in place which Mr X declined. This was a decision taken by the nursing home and supported by the Council. There is no evidence of fault by the Council in the way the decision was taken.

The visit to Mr X by two Council officers

32. A social worker and community mental health officer visited Mr X together after adult social raised concerns that Mr X may have care needs. Records show the visit was pre-arranged and the officers made case notes, which were provided to Mr X at his request. The Council decided it was not necessary to carry out any assessments or take further action and Mr X declined support offered to him. The evidence shows the visit was in Mr X’s best interests and there was no fault in the Council’s actions.

The Council did not respond to Mr X’s SAR request

33. Records show Mr X made a SAR to the Council in June 2021. The Council wrote back to Mr X and asked for verification of his identity to progress the request. The Council said it has not received copies of his identity or any further communication in relation to the request. Further investigation by me is unlikely to reach a finding of fault in relation to this. It is open for Mr X to approach the ICO if he believes the Council is refusing to comply with his request.

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Agreed action

34. Within one month of the final decision the Council agreed to remind relevant officers to consider applying to the Court of Protection for deputyship in circumstances where it is responsible for managing an adult’s finances with savings and/or assets in excess of £5,000.

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Final decision

35. I completed my investigation. I found fault but that fault did not cause Mr X an injustice. The Council agreed to a service improvement to prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman