Summary: Mr D complains the Council did not complete a capacity assessment properly of his mother which resulted in unnecessary Court of Protection proceedings, legal fees and the police taking criminal action against him. The Council is at fault for failing to review a capacity assessment, delay in complaint handling; and properly communicating decisions about financial assessments. This has resulted in uncertainty about whether Mrs D had capacity at the time to manage her finances and prioritise her debts as she chose. The Council has agreed to apologise to Mr D for the uncertainty the Council’s actions have caused him, pay him £450 and remind staff about the need to review capacity assessments.

The complaint

1. The complainant who I refer to as Mr D, complains in his own right and on behalf of his late mother who I call, Mrs D.
2. Mr D complains the Council failed to complete capacity assessments properly for Mrs D which led to:-
1. police taking criminal action against him;
2. Court of Protection proceedings and his mother losing her right to manage her own finances;
3. liaison with the DWP and Mrs D losing access to her pension;
4. mismanagement of Mrs D’s finances when the Council acted as Deputy including failing to provide her weekly personal allowance.
3. Mr D says because of the Council’s failures the police wrongly arrested him which caused him and his wife trauma. Mr D says he incurred legal costs for advice and the Council owes him money for sundry items he paid for Mrs D.

Back to top

What I have investigated

4. I have not investigated complaints before 2019 for the reasons set out below.

Back to top

The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)

Back to top

How I considered this complaint

9. I read case records about the actions the Council took. This includes papers sent and considered by the Court of Protection. I read Mr D’s complaint and all the papers he provided. I considered the relevant law and government guidance which included:-
• Care Act 2014 and the associated Care and Support Statutory Guidance (CSSG);
• Mental Capacity Act 2005;
• upheld complaint against the police.
10. Mr D 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

What should have happened

11. The CSSG says,

“14.55 People must be assumed to have capacity to make their own decisions and be given all practicable help before anyone treats them as not being able to make their own decisions. Where an adult is found to lack capacity to make a decision then any action taken, or any decision made for, or on their behalf, must be made in their best interests.”

12. The Mental Capacity Act 2005 and the associated Code of Practice sets out the principles for working with people who lack capacity to make a particular decision. The reasons a person’s capacity may be in question include:
• the person’s behaviour or circumstances cause doubt as to whether they have the capacity to make a decision;
• somebody else says they are concerned about the person’s capacity; or
• to help determine if a person lacks capacity to make particular decisions.
13. The Act sets out a two-stage test of capacity.
14. Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?
15. Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?
16. The following paragraphs are from the Code of Practice.
17. 4.14 A person is unable to make a decision if they cannot:
• understand information about the decision to be made (the Act calls this ‘relevant information’)
• retain that information in their mind
• use or weigh that information as part of the decision-making process, or
• communicate their decision (by talking, using sign language or any other means). See section 3(1).
18. The assessor should make sure they understand the nature and effect of the decision to be made themselves. They may need access to relevant documents and background information (for example, details of the person’s finances if assessing capacity to manage affairs).
19. Family members and close friends may be able to provide valuable background information (for example, the person’s past behaviour and abilities and the types of decisions they can currently make). But their personal views and wishes about what they would want for the person must not influence the assessment.
20. 4.29 says “it is important to review capacity from time to time, as people can improve their decision-making capabilities…..So assessments should be reviewed from time to time.” Capacity should always be reviewed as particular decisions need to be made.
21. 4.63 There are likely to be occasions when someone may wish to challenge the results of an assessment of capacity. The first step is to raise the matter with the person who carried out the assessment……..
22. 4.65 ... If a disagreement cannot be resolved, the person who is challenging the assessment may be able to apply to the Court of Protection. The Court of Protection can rule on whether a person has capacity to make the decision covered by the assessment.
23. An Independent Mental Capacity Advocate (IMCA) may be instructed to support someone who lacks capacity to make decisions concerning adult protection cases, whether or not family, friends or others are involved
24. Section 42 Care Act 2014 says a council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse.
25. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

26. Following a stay in hospital the Council placed Mrs D in a care home. Mr D says he told the Council Mrs D had less than £23250 in savings and was repaying a longstanding loan to him from her weekly income. The Council says the first time it was aware of the loan was on 12 January 2017 when Mr D complained to the Council.
27. Mr D says the Council arranged the move and told him it was a temporary measure until Mrs D could return home and the Council would pay the fees. Two weeks later before any rehabilitation the Council told Mr D the placement was permanent.
28. In May 2016 the Council said Mrs D needed to pay £522.53 per week towards her care costs. Mr D disputed this saying the Council failed to disregard payments to him for a loan repayment or ask his mother her wishes. By February 2017 charges of over £30000 for the care home remained unpaid and Mrs D’s placement was at risk. The Council therefore started to pay the care home fees. It advised Mr D to get legal advice and started safeguarding proceedings due to the risks associated with the unpaid fees. The Council says Mr D never provided any proof about the loan repayment even though both the Council and police requested this a number of times and was promised by Mr D.
29. In May 2017 the Council assessed Mrs D as not having capacity to make decisions about her finances. The Council appointed an IMCA in June 2017 who visited Mrs D and raised no concerns. The Council met with Mr D in December 2017 with his legal representative. Mr D had legal advice throughout the period of complaint. The Council arranged two further meetings which Mr D cancelled.
30. In March 2018 the Council held a safeguarding meeting with Mr D. Both the IMCA and the Council said it was in Mrs D’s best interests for her to stay at the care home and care home fees were a priority over any debt Mrs D had with Mr D. Mr D agreed to get legal advice but did not agree that payments to him should stop. The Council said that it would look at any documentary evidence Mr D provided about the debt but there was no guarantee it would make an exception.
31. The Council wrote to Mr D the following month advising him of its concerns that Mr D was not acting in Mrs D’s best interests and had not acted as he had promised. As a result it was now applying to the Court of Protection for deputyship.
32. The Council arranged a further meeting for 8 May which Mr D did not attend. It held a professionals meeting in May 2018 noting it had contacted the DWP to become the appointee for benefits and the Court of Protection for deputyship. It also records Mr D as paying for Mrs D’s sundry items when requested by the care home.
33. In May 2018 following the Council’s decision that Mrs D lacked capacity to manage her finances the police decided to investigate an alleged mismanagement of money by Mr D of Mrs D’s finances.
34. Mr D emailed the Council in October 2018 and made a without prejudice offer of £1700 per month towards Mrs D’s fees. Mr D says these requests were made as a result of advice from solicitors to try and end the anguish caused by the Council’s actions. The Council wrote back declining this offer saying this would not cover the costs of Mrs D’s stay at the care home. Mr D says he made a second offer to the Council which it did not respond to.
35. In September 2018 Mrs D told Mr D officers had visited her to talk about Mr D stealing her money. Mr D says this caused Mrs D distress. The Council then refused to engage with Mr D as there was an ongoing police investigation into alleged financial abuse by Mr D. The Council says this is normal procedure when the police are involved.
36. From May 2019 onwards Mrs D never received any banking documentation, and the Council became the appointee for Mrs D’s benefits. On 20 May 2019 the police arrested Mr D for fraud and taking out a credit card in someone else’s name. Mr D says the credit card was 45 years old. Mr D says the police raided his home in the presence of other residents. They removed two bank cards, two signed cheques, and several valuable items which belonged to Mrs D.
37. The second arrest on 24 July 2019 was for perverting the course of public justice. This was because Mrs D had signed a letter complaining to the MP. The Council says Mrs D could not write a letter of complaint herself and her signature was scrawled at the bottom of the letter .
38. Before the second arrest a police officer visited Mrs D with a Council officer and described her as confused. The police officer raised no concerns about Mrs D’s lack of capacity at the time.
39. On both occasions police questioned Mr D and released him without charge. The police say it acted based on information provided by the Council that Mrs D lacked capacity and there was potential financial abuse.
40. In November 2019 Mr D was aware that Mrs D was no longer receiving her personal allowance. The care home contacted Mr D directly to request money for any personal items. At the same time the Council asked the care home to monitor Mr D’s behaviour with Mrs D at the care home.
41. In December 2019 a GP completed a capacity assessment and decided Mrs D had capacity to make decisions about her finances. By April 2020 Mrs D had solicitors acting as her Power of Attorney for finances. They considered Mrs  D had capacity to both instruct them and make decisions about her finances. The Council did not challenge the capacity assessment completed as solicitors were now acting on behalf of Mrs D and deputyship was no longer needed to protect Mrs D from financial abuse. The Council withdrew from Court of Protection proceedings on this basis, ending on 20 April 2020. Mrs D passed away on 14 May 2020.
42. The Council closed the safeguarding investigation as inconclusive. It told Mr D about its decision on 4 June 2020 and sought to recover money it says is outstanding from Mrs D’s estate.

Complaints

43. Mr D wrote complaint letters in January 2017 and again in February 2020. I do not intend to investigate Mr D’s original complaint in 2017 for the reasons set out below. My statement is confined to the way the Council dealt with Mr D’s complaint from February 2020.
44. The Council responded on 6 February 2020 saying it could not respond as there were impending legal proceedings arising from Mr D’s objection to an application for deputyship. The Council provided a substantive response to the complaint in December 2020.

Police investigation

45. Mr D complained to the police about his arrests. The investigation report said that officers had acted on the basis of information provided by the Council that Mrs D lacked capacity to manage her financial affairs. The report says that officers would not have got involved without this information as it would have considered it a civil rather than a criminal matter.

Is there fault causing injustice?

46. The Council has a duty to protect the public purse and in doing so needs evidence to make decisions. The Council has an obligation to recoup any monies owed. The Council also has a number of discretions. Following the financial assessment the Council should have decided whether to disregard loan payments to Mr D. It should then have invoiced Mrs D for the amount that it considered was owed.
47. It appears the Council reached a decision on the debt but did not properly communicate this to Mr D or Mrs D. This is fault. When the care home made a safeguarding alert due to unpaid fees the Council completed a capacity assessment of Mrs D’s ability to manage her finances. The Council had already established that Mrs D did not have capacity to decide where she should live and therefore it was an appropriate first step to take in terms of her managing her finances; especially as her care home placement was at risk and she had accrued a debt of over £30000.
48. The Council’s assessment concluded that Mrs D did not have capacity to manage her finances. The Council considered it was in Mrs D’s best interests to make payments to the care home as priority over Mr D’s debt. Mr D disagreed and the Council acted by applying to the Court of Protection, contacting Mrs D’s bank and freezing Mrs D’s pension so that it could secure her best interests.
49. The Council told Mr D many times that it would consider further documentary evidence about the debt which may change its view. It never received this information although promised by Mr D several times. Mr D says he had all the information but wanted to meet in order to share the information, but the Council refused to meet. Mr D also attempted to negotiate payments with the Council.
50. The Council is not at fault for failing to meet with Mr D. Mr D could have provided any information in the written form with an explanation. It is unclear why Mr D did not send the information to the Council if it was readily available. In addition it was not for the Council to negotiate payments from Mrs D. Its consideration was whether there was a loan made to Mr D and whether the Council should prioritise it over Mrs D’s care home fees.

Mental capacity assessment

51. The Council completed a capacity assessment in May 2017. The Council used this assessment alone for the decisions that followed. As such it is within the time frame of my investigation.
52. The Ombudsman cannot challenge a professional judgement unless there is a procedural fault in the way it was carried out. Chapter 4 of the Code of Practice sets out the steps an assessor must take in order. I have found no procedural fault in the way the Council carried out Mrs D’s mental capacity assessment. An officer:-
• established that Mrs D had mixed dementia,
• visited Mrs D on two occasions asking relevant questions and using different aids such as monetary examples;
• involved another professional during one of the visits;
• read the care home case notes and consulted with staff at the care home;
• and made a considered decision following the steps identified in paragraph 17 above.
53. Mr D says the Council should have consulted with him as part of the capacity assessment or involved an advocate. Paragraph 4.49 says the assessor “may” involve family members to give a background. The assessment does not include a specific entry about the officer contacting Mr D to gain his views. It does however note under additional steps the assessment considered conversations and meetings with Mr D in 2016. I also have seen no evidence that Mr D challenged the capacity assessment at the time. I therefore find no fault in this aspect of the complaint.
54. Mr D says the Council should have involved an advocate to support Mrs D as she had no independent support during the assessment. The Mental Capacity Act 2005 does not say an advocate is needed during a capacity assessment. However the Care Act 2014 says an advocate is needed in safeguarding procedures where a person lacks capacity. An IMCA was involved during the safeguarding process. The Council is therefore not at fault for failing to provide an advocate.
55. Neither Mr D nor his representatives formally challenged the Council’s capacity assessment until December 2019. It is unclear why no challenge was made until there was an imminent Court of Protection hearing. The Council did not however review the capacity assessment and relied on an assessment that was three years old. I consider the failure to review the capacity assessment is not in line with paragraph 4.29 of the Code of Practice and is fault.
56. I have found fault in the Council’s failure to review the mental capacity assessment. However I cannot make a balance of probability finding now that had the Council reassessed/reviewed Mrs D’s capacity the outcome would have been different.
57. This is because:-
• capacity can fluctuate;
• apart from Mr D no one raised concerns or challenged the Council’s assessment. This includes an IMCA, care home staff; or the police who visited Mrs D in July before the second arrest and described her as “confused” with “no real idea of what was going on”;
• Mr D had previously not challenged Mrs D’s capacity to decide where she should live and took part in best interest meetings when Mrs D moved into the care home. This infers there was a legitimate concern about Mrs D’s capacity to make some decisions.
58. Mr D does however have the uncertainty that had the Council reviewed Mrs D’s capacity assessment it might have reached a different outcome.
59. The police arrested Mr D twice. Mr D says his arrests would not have happened had the Council properly assessed Mrs D’s capacity to manage her finances. This is because the police based its action on information from the Council about Mrs D’s capacity.
60. I consider the Council took appropriate action in contacting the police because of the concerns it had. For the reasons set out above I cannot say that had the Council reviewed Mrs D’s capacity assessment it would have reached a different outcome. Mr D does however have the uncertainty that his arrests could have been avoided had the Council reviewed Mrs D’s capacity assessment.
61. Similarly the Council contacted Mrs D’s bank, the DWP and made an application to the Court of Protection to become Mrs D’s deputy and manage her finances. This was because it had assessed Mrs D as lacking capacity to manage her finances and it had safeguarding concerns about Mr D. I cannot say but for the faults identified the outcome would have been different.
62. Mr D says Mrs D did not have access to her weekly personal allowance and that he is owed money for items he has bought. The Council says Mrs D could ask for money when required and it made several checks with the care home about whether Mr D was paying for sundry items. As Mrs D had now passed away I am unable to remedy any injustice by her being unable to access her personal allowance. I therefore do not intend to investigate this further.
63. Mr D was paying for sundry items until March 2019. It does not appear Mr D asked for reimbursement at the time. I do not consider it appropriate for the Council to reimburse these costs as this is now a matter for the executors. Mr D should approach the executors of Mrs D’s estate for any money owed.
64. The Council’s complaint policy does not include a time period for responding to complaints. Mr D’s complaint was comprehensive and there were a number of additional comments which the Council had to consider. However 11 months to consider the complaints is excessive. This caused Mr D added time, trouble and frustration.

Back to top

Agreed action

65. I have found fault in the actions of the Council which has caused Mr D injustice. I consider the following agreed actions by the Council are suitable to remedy Mr D’s injustice:-
1. apologise to Mr D for the failures I have identified in this statement of reasons in particular the failure to review Mrs D’s capacity to manage her finances which has caused uncertainty about whether the correct action including police action was taken against him and for delays in the way his complaint was dealt with by the Council;
2. pay Mr D £450 in acknowledgement of the uncertainty caused by the Council’s failures and the delay, time and trouble he faced when making his complaint;
3. remind staff about the importance of reviewing capacity assessments when major decisions are made;
4. remind staff and review procedures about when and how people are told about the outcome of financial assessments when decision making is ongoing or pending further information;
5. remind staff about keeping complainants updated about their complaint.
66. The Council should complete (a) within one month of the final decision and (b)-(e) within three months of the final decision.

Back to top

Final decision

67. I have found fault with the actions of the Council which caused Mr D and Mrs D injustice. I consider the agreed actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.

Back to top

Parts of the complaint that I did not investigate

68. I acknowledge the events that have occurred over the past six years have taken its toll on Mr D. However an investigation undertaken on behalf of the Ombudsman has to follow the law and consider its discretions.
69. I do not intend to investigate Mrs D’s original placement. Although the Ombudsman has discretion to consider matters that are more than 12 months old the placement occurred over six years ago. This is too long ago for me to be able to properly investigate. Mr D could have come to the Ombudsman at that time but did not do so.
70. For the same reasons I do not intend to investigate complaints made prior to 2019. Mr D had the benefit of legal advice and the Council referred Mr D to the Ombudsman in June and July 2018 but he did not escalate the complaint at the time.

Back to top

Investigator's decision on behalf of the Ombudsman