Summary: Mrs Z complained about the Council’s failure to communicate with Miss Y as a manager of the agency providing care to Mr X and to keep to its commitments. We found fault with the Council for its unsatisfactory communication with Miss Y and for its failing to keep to its commitments. The Council’s fault caused injustice to Miss Y. The Council agreed to apologise to Miss Y and to refund the money paid by the care agency towards Mr X’s expenses.

The complaint

1. Mrs Z is acting for Mr X and for a manager (Miss Y) of the agency which has been providing care to Mr Y. She says that after the death of Mr X’s only next of kin the Council failed to:
• communicate with the agency providing care to Mr X (the Care Agency);
• consider Mr X had nobody to take decisions on his welfare and finances;
• keep proper records;
• act on its commitments made during the complaint process.
2. As a result, for a prolonged time Mr X did not have anybody who could decide about his welfare and finances. He had no access to his finances and the Care Agency used its own funds to cover his expenses.

Back to top

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. 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)

Back to top

What I have and have not investigated

5. The complaint brought by Mrs Z can be split into two parts. One is about the Council’s actions towards Miss Y as a manager of the care agency providing domiciliary care to Mr X and this decision includes my findings on this part of the complaint. The second part of the complaint is about the Council’s failings towards Mr X as a person with eligible care needs. I have investigated the second part under the reference number 24 008 874.

Back to top

How I considered this complaint

6. I spoke with Miss Y and considered the information she provided.
7. I considered the information the Council provided.
8. I referred to our guidance notes “Principles of Good Administrative Practice”.
9. Mrs Z and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and guidance

10. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
11. 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.
12. Councils must promote well­being when carrying out any of their care and support functions in respect of a person. This may sometimes be referred to as ‘the wellbeing principle’ because it is a guiding principle that puts wellbeing at the heart of care and support. For safeguarding, this would include safeguarding activities in the widest community sense and is not confined to safeguarding enquiries. (Care Act 2014 Section 1)
13. Safeguarding is defined as protecting an adult’s right to live in safety, free from abuse and neglect. Adult safeguarding is about preventing and responding to concerns of abuse, harm or neglect of adults. Staff should work together in partnership with adults so that they are:
• safe and able to protect themselves from abuse and neglect;
• treated fairly and with dignity and respect;
• protected when they need to be;
• able easily to get the support, protection and services that they need.

What happened

14. Mr X does not have capacity to make decisions about himself. His aunt, as the only next of kin, was his deputy and managed his finances. Mr X lives independently and is supported by a care agency (the Care Agency) commissioned by the Council to provide domiciliary care. Miss Y is a manager in the Care Agency.
15. In February 2024 the Care Agency told the Council Mr X’s aunt fell ill and was in hospital. As she could not make any decisions about Mr X, the Care Agency asked the Council to provide an advocate for Mr X. The Council told the Care Agency to contact it when Mr X needed any decisions to be taken about his welfare or finances.
16. In April 2024 Mr X’s aunt died. After being told by the Care Agency, the Council noted its intention to visit Mr X and discuss his situation as well as to provide Mr X with emotional support and bereavement counselling if needed.
17. In mid-June 2024, following some chasing correspondence from Miss Y and a telephone conversation in mid-April, the Council carried out a review of Mr X’s care and support plan. This review could not be approved as Mr X did not have an advocate. The Council referred Mr X to the advocacy service and an advocate was appointed for him in mid-July 2024. Miss Y complained about the Council’s delays, lack of communication and record keeping.
18. In its response to Miss Y’s complaint the Council:
• apologised for the poor communication and the lack of support from the commissioning team;
• admitted that its significant delays and the lack of follow-up impacted the Care Agency’s ability to provide adequate care to Mr X;
• recognised the Care Agency had contacted the Council in February and April about the advocacy for Mr X but could not confirm whether such referral was completed.
19. The Council also said it would prioritise the referral for an advocate and complete Mr X’s care assessment at the beginning of August 2024.
20. A day after another email from Miss Y stating Mr X still could not access his funds, the Council completed a Mental Capacity assessment for Mr X. Mr X’s advocate took part in this assessment. The assessment confirmed Mr X did not have mental capacity to make decisions about his welfare and finances.
21. In the second week of August 2024 Mr X had a medical emergency and was taken to the hospital. Miss Y could not reach Mr X’s social worker who took part in the Mental Capacity assessment (Social Worker 1). The Council’s duty team advised Miss Y that the Care Agency should take medical decisions for Mr X. On contacting the Care Agency Social Worker 1 said the Council would be taking over Mr X’s finances. Miss Y remained concerned about Mr X not having anybody who could make decisions about his health.
22. During Mr X’s care and support review, which got authorised in August 2024, the Council found out his needs had not changed. Social Worker 1 noted Mr X would need a Mental Capacity assessment with regard to his finances.
23. Throughout August and September 2024 Miss Y kept contacting the Council explaining Mr X did not have access to his money and that he had nobody to take decisions for him. Miss Y was asking for a meeting or a conversation.
24. A new social worker allocated to Mr X (Social Worker 2) arranged a meeting with Miss Y and Mr X in the second week of September. During a telephone call Miss Y told Social Worker 2 the Council had already carried out a Mental Capacity assessment for Mr X.
25. Later in September Miss Y told the Council Mr X had lost his contract with his internet provider and nobody had the information necessary to allow him access.
26. Social Worker 2 visited Mr X in his house. She explained she had come to complete a Mental Capacity assessment for Mr X to check whether he could manage his finances. Her assessment confirmed Mr X did not have mental capacity to take decisions about his finances. Social Worker 2 said she would complete an application for an appointee.
27. Despite the internal communications in the Adult Social Care team about Mr X’s lack of mental capacity to make decisions and the need to apply for an appointee for him, no referral was made until the end of November 2024.

Analysis

28. In its response to Miss Y’s complaint the Council acknowledged and apologised for the poor communication and the lack of support from its commissioning team. It also acknowledged that the significant delays and the lack of follow-up impacted the Care Agency’s ability to provide adequate care to Mr X.
29. Various members of the Council’s staff kept referring to the need for a Mental Capacity assessment for Mr X although it had already been carried it out in June 2024. Social Worker 2 should have been aware this assessment had been completed. It seems the poor record-keeping affected the way the Council performed its social care duties.
30. The Council’s failings to take appropriate action following the receipt of Miss Y’s updates on Mr X’s situation are fault. They meant Mr X had nobody who could take decision about his welfare and who had oversight of his finances. The Care Agency had to use their own funds to ensure Mr X had money for his day-to-day expenses. He would have otherwise suffered neglect. Until mid-January 2025 the Care Agency paid £1,260 into Mr X’s cash card.
31. From February 2024 Miss Y has continuously been contacting the Council about Mr X’s situation. She spent much time on telephone calls and on writing letters. She was frustrated by the lack of decisive action from the Council to protect Mr X’s interests.

Back to top

Agreed action

32. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Miss Y for the injustice caused to her by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• refund the Care Agency £1,260. This will happen after the Care Agency sends the evidence to the Council of the money paid into Mr X’s cash card.

The Council will provide the evidence that this has happened.

33. To remedy the injustice caused by the Council’s delays the Council will refund the Care Agency in the first week of the following month any money which the Care Agency had transferred into Mr X’s cash card up to the end of the preceding month. This will continue until the appointment of a deputy for Mr X.

Back to top

Final decision

34. I uphold this complaint. The Council failed in its communication with Miss Y and by not acting despite its commitments. The Council’s fault caused injustice to Miss Y. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman