Summary: Mrs X complains the Council, when acting as a deputy for her mother, should have noted payments to an insurance policy. We found fault by the Council which caused personal injustice. The Council has agreed remedies for the injustice and service improvements.

The complaint

1. Mrs X complains the Council:
• acting as her mother Mrs Y’s deputy via the court of protection, failed to make payments to a life insurance policy. This led to the policy lapsing and the insurer refusing to make payment of £10,000. Mrs X says this has caused anxiety and distress for her when dealing with her mother’s death and in her role as executor of her mother’s will.
• failed to transfer any direct debits to the new deputy account.
• Contacted the life insurance company after Mrs Y died without having authority to do so and misrepresented the reasons for doing this. The officer did not provide information to assist Mrs X as a result of the call.
• breached data protection rules because it sent her two invoices for a third party. She says she had to call the Council three times. She fears the Council may have disclosed her personal information.
• failed to pay pet insurance for Mrs Y’s cat after promising it would pay this. As a result, the policy lapsed and Mrs X says she was distressed the cat did not receive the veterinary care it could have received.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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).
4. The Information Commissioner's Office (ICO) 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.

Back to top

How I considered this complaint

5. I have discussed the complaint with Mrs X and considered the information she provided. I have made enquiries of the Council and considered the comments and documents it provided. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Court of Protection

6. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
7. 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 or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.
8. The Code of Practice to the Mental Capacity Act 2005 (MCA) sets out the duties of a deputy.
9. Paragraph 8.50 of the Code says deputies must:
• Follow the MCA statutory principles
• Make decisions in the Best Interests of the person who lacks capacity
10. Paragraph 8.56 of the code says: Deputies must carry out their duties carefully and responsibly. They have a duty to act with due care and skill (duty of care).
11. Paragraph 8.57 sets out the meaning of duty of care. It notes that professional/paid deputies are required to demonstrate a higher degree of care and skill.

What happened

Insurance policy

12. In 2020 the Council applied to the Court of Protection in respect of Mrs Y, when Mrs Y’s family were unable to agree about how to support her needs.
13. In May 2020 the Court of Protection issued an Order to the Council. It confirmed the Council would act on Mrs Y’s behalf in relation to her property and affairs.
14. The Council contacted Mrs X who had acted as Mrs Y’s representative to ask about details of
• her pension with insurance company A,
• a life assurance policy with company B, and
• an investment bond with company C.
15. Mrs X provided information about the pension, assurance policy and bond. She also advised the Council regarding a store card with a credit balance of £60. She said she would inform the Council of anything else that came to mind. Mrs X says she sent the Council a file of all the papers that she held regarding Mrs Y.
16. In June 2020 the Council’s officer contacted company A, which was paying a pension to Mrs Y enclosing a copy of the Court of Protection order. She asked the company to update its records. She asked the company to make future payments of Mrs Y’s pension to the new bank account set up by the Council’s Court of Protection Team account because her original bank account had been closed. The officer did not ask about another direct debit Mrs Y paid to company A.
17. The insurance company replied confirming receipt of the Court of Protection order. It said it had updated its records.
18. In July 2020 the Council wrote to company A again about Mrs Y’s pension. It sent its letter to two different addresses for company A. It said it hoped this would enable the company to trace Mrs Y’s pension.
19. Company A replied confirming that it had registered the Council as Mrs Y’s deputy. It said it would send all future correspondence to the Council.
20. The Council did not pursue identifying the reason for the direct debit payment to Company A. Its officer said that the company did not reply regarding the direct debit and so she assumed the direct debit was no longer applicable.
21. Later in July 2020 the Council asked Mrs X for identification documents for Mrs Y because a financial institution required these. Mrs X sent copies of a birth certificate and a passport.
22. Company A paid Mrs Y’s pension to the Council from July 2020, until she sadly passed away in 2022.
23. Mrs X was Mrs Y’s executor in respect of her will. The Council contacted Mrs X in July 2022 to provide a “first estate letter” setting out her estate including savings and insurance payments.
24. Mrs X contacted the Council regarding a life insurance policy that Mrs Y had with company A. She asked why the Council had cancelled the direct debit. The Council replied it did not know about this policy.
25. Mrs X complained that the Council, acting as Mrs Y’s deputy had closed her bank account and had not transferred the direct debits to pay the life insurance premiums for the policy with company A. Because payments had stopped, company A would not pay the lump sum of £10,000 that would have been paid on Mrs Y’s death.
26. Mrs X said Mrs Y had not updated company A regarding her new address so when it wrote to her about non payment of premiums, it did not receive a reply and the account lapsed. Mrs X said the Council’s officer had contacted her for information about Mrs Y’s finances which she had provided. She said “I hold all the life insurance policy details for Mrs Y…I hold the [company A] policy details and all correspondence…. dating back to 1998. I would gladly have offered up information about Mrs Y’s direct debit mandate had the Court of Protection asked me”. However, there was no checklist, or request for information about other names Mrs Y had been known by. The Council had not asked her about the policy with company A. In Mrs X’s view the Council should have made efforts to trace the policy. As it had not done so, this led to the family losing out on £10,000. She said this caused distress when the family were mourning the loss of Mrs Y.
27. The Council replied it was usual practice for a court-appointed deputy to close existing bank accounts and open an account in the deputy’s name. The Council explained the case officer had manually checked the account and contacted company A on several occasions. However, the company was unable to trace records of the insurance account from the account number, which would not have changed even if Mrs Y’s name had changed.
28. The Council noted that Mrs X said she held the account records and had several conversations and email exchanges with the case officer. It said it was reasonable to expect Mrs X to provide all information she held and to have forwarded all correspondence received for Mrs Y. The Council said it was not a requirement to send a checklist to the family to complete. However, officers had a substantial checklist as part of their file management which had been followed. The Council did not uphold the complaint.
29. In October 2022 Mrs X complained further to the Council. She said that:
• The Council implied it was her fault that the £10,000 insurance was not paid.
• The Council should have recognised the direct debit should be paid.
• The Council had a year to trace the insurance policy and make payments.
• Company A said Mrs Y’s change in name and address would not make a difference.
• The Council had contacted her several times in 2020, but had not asked her specifically for information regarding the policy with company A.
• The Council should explain why it allowed the policy to lapse and provide evidence that it did all it could to identify the policy.
30. Mrs X made a further complaint about the Council calling company A after Mrs Y’s death. Mrs X had obtained a transcript of the call. She said the officer stated he was the deputy when he was not. And he did not have authority to discuss her mother’s finances after her death. That was the executor’s responsibility. The officer also stated that he had spoken to Mrs X when he had not.
31. The Council acknowledged Mrs X’s complaint, but it has confirmed that it did not respond to it. It says this was due to an oversight and it has apologised.
32. In its response to my enquiries the Council states that acted in good faith based on the information Mrs X provided regarding the policies and pensions it knew about. It says it communicated with Mrs X about the need for her to provide all information relating to her mother’s financial affairs. Mrs X appeared to respond to that request. However, the Council says that Mrs X did not tell it about the existence of a policy that was taken out many years ago by Mrs Y when she was living at a different address, and using a different name. In the Council’s view it was Mrs X’s responsibility to advise it about this information which she held, as she was able to provide the information following the death of her mother.
33. The Council said that it could be argued that company A should have identified that Mrs Y held additional policies under different name and address, and taken action to inform the Council once the payments for the policy had ceased and correspondence was returned.
34. In a response to an earlier draft of this statement, Mrs X has advised that she did not know about the insurance policy with company A until after her mother’s death. She said she found the papers for the policy in her mother’s care home which she had been unable to enter during Covid lockdowns. She said the Council had taken her statement in her complaint of August 2022, that she held all the papers including the policy for Company A, out of context. She explained that she held the papers in 2022 after her mother’s death, but had no knowledge of the policy in 2020 when the Council asked her about her mother’s policies. Therefore, she had not withheld information because she did not have knowledge of it at that time.
35. Mrs X also commented that
• the Council should have asked Company A specifically about the direct debit for as well as the pension.
• While the Council stated it did not cancel the direct debit, but it is unclear whether it identified it. If it had noted it, it should have taken action to investigate it.
• If it was planning to decide that it would not continue payments it should have made a best interests decision about this.
• Company A confirmed in writing that it could have identified the policy based on the payment and bank details and that a different name and address would not have prevented it identifying the policy.
• The Council did not ask her about possible previous names yet its checklist regarding personal history which states “obtain as much information as possible regarding their financial affairs and personal history” was marked “yes”.
• The Council did not complete a statement of assets and liabilities according to its own checklist.
36. With regard to its officer’s call to Company A, the Council accepts that the case officer did not have authority to discuss Mrs Y’s policy. It says that the officer’s intentions were good because he wanted to answer Mrs X’s questions. It does not consider the officer misrepresented himself as the case officer in charge of the deputyship of Mrs Y’s affairs.

Analysis

37. I consider there was fault by the Council because it failed to identify the direct debit payment to company A. I can see that the Council specifically asked about the pension income from company A. But it did not ask about the payment being made to company A. I consider it had a duty to identify it and should have asked company A about it specifically.
38. The Council’s officer stated that she considered the direct debit was not applicable when Company A did not reply. However, I consider that further investigation was necessary to identify what the payment was for. The Council effectively cancelled the direct debit without finding out what it was when it closed Mrs Y’s account.
39. The Council had a duty to act in Mrs Y’s best interests. If it intended to stop making the payment to company A it should have set out its decision and the reasons for this. The Council cancelled the direct debit when it closed Mrs Y’s account. But there is no evidence it considered whether it should have stopped the payment or not. This is fault and caused injustice because the intended policy benefit of £10,000 was lost.
40. The Council asked for financial information from Mrs X. She provided this but it did not include information about the company A policy. Mrs X has advised that she did not know about the policy in 2020. She stated in August 2022 that she had all the information about the policy because she had just found the paperwork for the policy with company A.
41. On the basis of all the evidence I have seen I consider that on the balance of probability Mrs X was unaware of the policy when the Council asked for further information about Mrs Y’s finances in 2020. The Council could not reasonably expect Mrs X to have provided that information because she was not aware of it.
42. I consider there was fault by the Council’s officer in contacting company A. He did not have the authority to do this. I have considered whether this caused injustice to Mrs X. I note that the Council says it was in an effort to address the issue she had raised. Mrs X’s view is that it was underhand and it was actually the Council trying to make sense of its own poor record keeping. She says the Council did not contact her after the call to advise about its conversation or possible policy reinstatement. I consider this caused injustice to Mrs X because she was outraged at the Council’s actions at a particularly sensitive time. I have made a recommendation regarding this to ensure that officers are aware they should seek consent in order to prevent recurrence and potential injustice to others. I do not consider there is sufficient evidence the officer misrepresented himself or that he was seeking to cover up the Council’s actions as Mrs X suggests.
43. There was fault by the Council due to its failure to respond to Mrs X’s stage two complaint. I note the Council has apologised, but I have also recommended a financial remedy to take account of Mrs X’s time and trouble, and the distress caused by the Council faults after her mother’s death.

Pet insurance

44. Mrs X complained the Council failed to pay pet insurance for Mrs Y’s cat despite saying that it would. As a result, the relative who was looking after the cat could not afford veterinary treatment, which Mrs X says caused her distress. I have considered the documents and information the Council sent me and I do not consider there is fault by the Council here. When the cat went to live with another relative, the insurance company could not treat Mrs Y as the owner, and the Council could not hold the policy. However, I have seen evidence the Council did pay for some treatment for the cat, mitigating some of the financial costs.

Data Breach reports

45. Mrs X complained the Council sent her invoices for someone else and that it may have disclosed her personal information.
46. The Council has provided evidence of the actions it has taken regarding the data breach which appear appropriate. I have not found apparent fault here. In addition, I have not seen evidence of a data breach of Mrs X’s or Mrs Y’s information. However, if Mrs X remains dissatisfied, she may complain to the Information Commissioner regarding this matter.

Back to top

Agreed action

47. I have found fault causing injustice. I recommended that within one month of my decision the Council should:
• Pay £10,000 to Mrs Y’s estate.
• Pay £250 to Mrs X for her time and trouble in pursuing the complaint.
• Remind officers that when the person who is the subject of a deputyship dies, they do not have authority to contact financial organisations without the executor’s or administrator’s consent.
• Review its procedures and checklist to ensure it identifies all payments made from a person’s account and makes a decision in the person’s best interests regarding whether to continue making those payments.
48. The Council should provide us with evidence it has complied with the above actions.
49. The Council has agreed.

Back to top

Final decision

50. I found fault by the Council causing injustice. The Council has agreed suitable remedies. I have completed my investigation and closed the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman