Summary: Mrs Y complained on behalf of her late sister, Mrs X, that the Council unnecessarily decided to store Mrs X’s unwanted belongings when she went into residential care, resulting in substantial storage charges. The Council was at fault for not consulting Mrs Y about its decision and for not carrying out a best interests assessment.

The complaint

1. Mrs Y complained on behalf of her late sister, Mrs X, that the Council unnecessarily decided to store Mrs X’s unwanted belongings when she went into residential care, resulting in substantial storage charges.
2. Mrs Y said the Council told her Mrs X’s landlord was responsible for disposing of the unwanted items and it failed to notify her of its decision to put the items into storage. Mrs Y argues the items were no longer of any use to Mrs X, so the Council was wrong to put them in storage, and Mrs X’s estate should not be responsible for the costs.
3. Mrs Y said she suffered stress and anxiety over eight months as a result of the Council’s actions.

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The Ombudsman’s role and powers

4. 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)
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. As part of the investigation, I considered the complaint and the information Mrs Y provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Care and Support Statutory Guidance

9. The Care and Support Statutory Guidance (the guidance) states local authorities 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. (Chapter 10.88)
10. If the adult in question lacks capacity and no other person has been authorised to act on their behalf, the local authority must act in the best interests of the adult in accordance with section 4 of the Mental Capacity Act 2005. (Chapter 10.91)

The Council’s guidance on protecting moveable property and belongings

11. The Council’s guidance states that when a person is placed into a care home it should take steps to identify moveable property or belongings they have in their home.
12. When identified, the Council should make a record of the moveable property and belongings and take steps to decide whether it is required to protect them.
13. The requirement for the Council to protect moveable property and belongings applies when:
• It is not secure or will become insecure, and
• The person is not able to protect it, and
• Another person (such as a family member) is not willing or able to.
14. The requirement also applies when a person making arrangements has not done so or is not able to continue doing so.
15. The Council’s guidance states, if a person lacks capacity to consent the Council can only take steps to protect their moveable property and belongings if it is in their best interests to do so. The best interest decision must be made in line with the Mental Capacity Act.
16. If there is no authorised lasting power of attorney or deputy, the Council should apply the best interests principle of the Mental Capacity Act and decided whether protecting the moveable property and belongings is in the person’s best interests.
17. When deciding the best way to protect a person’s moveable property and belongings the Council should consider:
• The level of risk of damage.
• Whether the person is likely to be able to resume responsibility for protecting their property in future.
• What costs are likely to be incurred.
• How long the property or belongings may require protecting.

The Council’s policy on protection of property and assets

18. The Council’s policy states, where a service user lacks capacity and there is no authorised person, the Council using its powers to protect moveable property should be in the persons best interests in accordance with section 4 of the Mental Capacity Act.
19. The policy goes on to say that a best interests decision is required when considering making an application to the Court of Protection about protection of property where there is no authorised person.
20. It also states the Council can enquire whether other suitable arrangements are in place with relatives, friends, landlords or neighbours.

Mental Capacity Act 2005

21. Section 4 of the Mental Capacity Act has a best interests checklist. It outlines what needs to be considered before taking an action or making a decision for someone who lacks capacity.
22. The assessor should consider:
• The person’s feelings and wishes.
• All the circumstances relevant to the person, such as age, whether they may recover capacity, and who is caring for the person.
• The views of carers, family, or people with an interest in the person’s welfare.

What happened

23. I have summarised below some key events leading to Mrs Y’s complaint. This is not intended to be a detailed account of what took place.
24. Mrs X was admitted to hospital in February 2021. She suffered from dementia and was considered at risk of self-neglect if discharged back to her rented home. Mrs X agreed to go to a residential care home.
25. Mrs Y contacted the Council in late February. She was concerned Mrs X’s landlord had served an eviction notice, and about possessions and personal family items in her home. The Council was aware of the eviction notice. It said Mrs X’s home was secure and it would speak to her about Mrs Y removing items. Mrs Y said she did not want to be involved in legal discussions as she had been estranged from Mrs X and did not feel it was her place.
26. The Council assessed Mrs X as lacking capacity to decide where she lived.
27. Mrs X’s social worker (the social worker) telephoned Mrs Y on 10 March 2021. They told her about the duty to protect Mrs X’s property and said there were two options:
• The Council could apply to the Court of Protection for deputyship to terminate Mrs X’s tenancy and put her possessions into storage. Mrs X would be liable to pay storage fees. Or;
• Mrs Y take on liability for Mrs X’s home and sort her possessions. Mrs Y can then hand the keys back to Mrs X’s landlord who can dispose of any remaining possessions and charge Mrs X. This option is likely to incur less expenses for Mrs X.
28. Mrs Y felt her taking over liability for Mrs X’s home was most suitable.
29. The social worker met Mrs Y at Mrs X’s home in April 2021 to hand over the keys and help clear some of Mrs X’s belongings. Mrs Y said she planned to sort through the property and then contact the landlord once she was on top of decluttering.
30. The Council completed a financial capacity assessment for Mrs X in May 2021. It found she lacked capacity regarding her finances.
31. Mrs Y emailed the Council in early June 2021. She said she removed all she could of Mrs X’s personal possessions and there is no more she can do. She posted the keys for the landlord to take possession.
32. The landlord contacted the Council about the condition of the property and the amount of Mrs X’s belongings left behind. Council officers, including the social worker, met to discuss the case. They decided no one had authority to decide whether the Council can hand keys back to the landlord. They also decided to meet Mrs X to determine her capacity about the items left in her home. Last, they considered the Council must put Mrs X’s belongings into storage if she lacks capacity to decide what to do with the items. The officers agreed to make a referral to the Council’s protection of property service.
33. The Council applied to the Court of Protection in July 2021 so a deputy could manage Mrs X’s finances. Until then, the Council could not cancel Mrs X’s direct debits, including payment of rent to the landlord.
34. The social worker met the landlord at Mrs X’s home at the end of July 2021. They found crates packed with items, empty jewellery boxes, empty photo albums and frames, and items in bags. The social worker recorded the property had lots of contents still inside.
35. The Council cleared Mrs X’s home and put her belongings into storage in August 2021.
36. Mrs Y asked the Council for an update on its Court of Protection application in May 2022, because Mrs X was still paying rent to the landlord. The Council said it was still waiting to hear from the Court of Protection, who had a significant backlog.
37. Mrs X passed away in August 2022. The Council told Mrs Y it put Mrs X’s possessions into storage and Mrs Y could now decide about disposing of them.
38. Mrs Y asked the Council why it did not consult her before storing Mrs X’s remaining items. She said she told the social worker in April 2021 that she did not want anything to go into storage, given Mrs X’s circumstances. She said the social worker told her the landlord would be responsible for clearing anything left in the property. Mrs Y said she removed things of value and left what could be disposed of. She said she was surprised to find the Council stored everything she left and if she had known at the time the landlord would not dispose of the items, she would have done so herself.
39. The Council told Mrs Y no one had the authority to dispose of Mrs X’s belongings until the Court of Protection appointed someone to make the decision. It said it had to place Mrs X’s belongings in storage when it cleared the property as she lacked capacity to decide.
40. Mrs Y complained to the Council in September 2022. She said:
41. The Council put the entire contents of Mrs X’s home into storage, costing thousands of pounds, but did not tell her about this until Mrs X died.
42. She was involved in a meeting about Mrs X being admitted to residential care and thought she would be involved in ongoing decisions.
43. She met the social worker at Mrs X’s home in April 2021 and asked what would happen to items left in the house. The social worker said they could go into storage, but it would be expensive. Mrs Y said she rejected this and saw no point in it, as Mrs X was now in residential care. Mrs Y also asked who was responsible for clearing the house. The social worker told it was the landlord, possibly using the deposit to cover costs.
44. The social worker gave her the keys and she made a few visits to clear some of Mrs X’s belongings. After deciding there was nothing left of value, she left the keys for the landlord.
45. The Council should have contacted her, as next of kin, before it made the decision to put the remaining items in storage.
46. The bill for storage was over £5,500 and the bill for disposal was over £2,000.
47. Mrs X had advanced dementia, so was never going to live in the community again. She was also a widow with no children, so Mrs Y cannot understand how the Council reached the conclusion her belongings needed protecting, and for what purpose, as they were of no use to Mrs X anymore.
48. She made a conscious decision to leave Mrs X’s remaining belongings in the property to be disposed of. If the Council was debating what to do with the belongings, it should have contacted her, and she would have arranged clearance herself.
49. It should not fall on Mrs X’s estate to cover the costs of the needless storage.
50. The Council responded to the complaint in October 2022. It said when Mrs Y returned the keys to the landlord the tenancy had not ended as there was no legal representative in place to make decisions for Mrs X. The Council referred to its duty to protect property under section 47 of the Care Act 2014. It said someone cannot decide about disposal of items without holding lasting power of attorney or being a court appointed deputy. As such the Council said it had an obligation to ensure Mrs X’s property was secure. The Council apologised if Mrs Y felt this was not made clear to her.

My investigation

51. The Council told me it had a responsibility to protect Mrs X’s moveable property and belongings as she lacked capacity. It was unaware which items were unwanted, so it needed to store them until the Court of Protection appointed a deputy to decide what to do.
52. The Council said it cannot confirm whether it told Mrs Y the landlord could dispose of unwanted items. It has no records about this. The Council accepts by telling Mrs Y to post the keys through the door once she had finished clearing the house it could have misled her to assume any remaining items would be disposed of.
53. However, the Council said it was unaware there was a substantial amount of property still left in the house until the landlord got in touch. The Council said it did not tell Mrs Y it was organising storage because she had told the landlord she did not intend to return to clear Mrs X’s remaining belongings.
54. The Council confirmed Mrs Y was involved in the initial best interest meeting about Mrs X’s care and support. It therefore accepts she would expect to be involved in the decision about whether to place her remaining items in storage. However, it said Mrs Y did not want to take on the legal responsibility for her sister and was aware of the Council’s application for deputyship – which would allow it to make decisions about Mrs Y’s finances and property.
55. The Council accepts some of its communication should have been clearer and would have removed the ambiguity around the responsibility for clearance. It accepts it would have been good practice to contact Mrs Y when it became aware personal items were left in Mrs X’s home and it would need to store them until the Court of Protection appointed a deputy.
56. The Council also accepts its responses to Mrs Y’s concerns were delayed, causing more distress. It apologised for this.
57. The Council said it is happy to remind practitioners to complete learning for protection of property to ensure they are fully aware of the Council’s responsibilities. It also said it will remind practitioners of the need for clear communication about this.

Analysis

58. The Council had a responsibility to prevent or mitigate the loss or damage to Mrs X’s belongings under the Care Act 2014. This was because she was receiving care and support in a care home arranged by the Council, and there was a danger of loss because Mrs X’s landlord wanted the property back. Mrs X could not arrange the removal of her belongings herself.
59. The Council had assessed Mrs X as lacking capacity to make decisions around financial management and where to live. Mrs X therefore could not give the Council consent to deal with her belongings.
60. Mrs X also did not have a legally appointed person to give consent to the Council to deal with her belongings. However, the Council could enter Mrs X’s property to deal with her belongings if it was satisfied it was in her best interests.
61. The Council entered Mrs X’s property to assess her belongings. However, there is no record of what belongings were in the home which needed protecting. That was fault.
62. The Council was in contact with Mrs Y and, in line with its policy, it agreed for her to take responsibility for Mrs X’s belongings. Mrs Y removed some belongings of value, and left the rest.
63. Unfortunately, it appears there was a breakdown in communication between Mrs Y and the Council about Mrs X’s remaining belongings. Mrs Y thought she could leave them for the landlord to clear. The Council on the other hand felt Mrs Y did not want to take responsibility for the items, so it had a duty to protect them.
64. The records I have seen show the Council did tell Mrs Y she could clear Mrs X’s home and the landlord could dispose of any remaining possessions. The Council also explained this option should incur less costs for Mrs X. Mrs Y acted on the Council’s advice and left items behind expecting the landlord to dispose of them.
65. When the Council returned to Mrs X’s property after Mrs Y left the keys it gave a vague description of some items, but again there is no record of what belongings needed protecting. That was fault.
66. As Mrs Y was Mrs X’s next of kin, and would have inherited the belongings, the Council should have contacted her again for her input.
67. Instead, the Council assessed Mrs X’s capacity to decide what to do with her belongings and determined she lacked capacity. It then placed her belongings in storage while it applied to the Court of Protection.
68. The Council’s policy envisages the Council will take over where someone else cannot or will not deal with the belongings. That was not strictly the case here. The Council should have contacted Mrs Y again to update her of the situation. If it had, I am satisfied she would have cleared Mrs X’s home herself.
69. In addition, the Council did not carry out a best interests assessment about what should happen to Mrs X’s belongings. The Mental Capacity Act 2005 outlines the steps the Council should take when working out what is in a person’s best interest. The Council did not follow these steps. Therefore, the Council’s decision was not made properly and there is uncertainty about whether the decision made was in Mrs X’s best interests.
70. The Council should have considered the necessity to store Mrs X’s belongings, given she was in a care home. It should have considered the time they may need to be stored, the costs, and Mrs X’s wishes. The Council should also have involved Mrs Y in this process. I have not seen evidence the Council did this. That was fault.

Injustice

71. The identified faults caused injustice because the belongings were no longer of value and were disposed of by Mrs Y immediately after Mrs X’s death.
72. If the Council had contacted Mrs Y again before storing Mrs X’s belongings, Mrs Y could have cleared them, avoiding expensive storage fees.
73. The Council should therefore waive the storage fees it charged.
74. Mrs Y would have disposed of Mrs X’s remaining belongings if she had been aware the landlord would not. This would have incurred costs. I will therefore not recommend the disposal fees are reimbursed.
75. Receiving a substantial bill for storage fees, and not being updated or involved in the decision-making process caused Mrs Y avoidable distress. This is also injustice.

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Agreed action

76. Within four weeks of my final decision, the Council will:
• Apologise to Mrs Y for not telling her about its plans to store Mrs X’s belongings, and for not carrying out a best interests assessment before doing so.
• Waive the storage fees.
• Pay Mrs Y £300 to acknowledge the distress its faults caused.
77. Within three months of my final decision the Council will carry out refresher training for staff around protection of property and remind them about the importance of clear communication and involving family members at the relevant times.
78. The Council should provide us with evidence it has complied with the above actions.

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Final decision

79. I have completed my investigation. The Council was at fault for not consulting Mrs Y about its decision to store Mrs X’s belongings, and for not carrying out a best interests assessment.

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Investigator's decision on behalf of the Ombudsman