Decision Date: 8 October 2024
Summary
There was a year’s delay in Nottingham City Council’s arrangements for acquiring authority over the financial affairs of a person without capacity, causing distress and unnecessary financial strain on a family member, Ms X. The LGSCO found fault, advising a commitment to progressing deputyship and restitution of the expenditure.
What happened
In Spring 2023, Ms X and her sister, who held power of attorney for their uncle, stepped down from their roles. The Office for the Public Guardian then contacted the Council, requesting that someone apply for Deputyship.
As the social worker was on extended leave, no progress was made on this matter by October 2023. Ms X made a formal complaint, also mentioning that the care home fees were not being paid and that her uncle’s personal funds could not be accessed. She claimed that this meant that she had to cover expenses, such as her uncle’s transportation, clothing and other necessities.
In March 2024, Nottingham City Council transferred the matter of deputyship to its Community Prevention team. Ms X’s uncle relocated to a new care home. According to a review in May, he had adjusted well and had access to a personal allowance.
What was found
The LGSCO found that there was a full year’s delay by the Council in arranging the financial affairs of an individual lacking capacity after family members with power of attorney stepped down. The LGSCO found this to be at fault, as it resulted in unnecessary distress and inconvenience.
According to Nottingham City Council’s response to the LGSCO’s investigation, a personal allowance was added by both care homes to the fees pending the funding situation being resolved.
[We do not know what that means, in terms of how the funding was working for Ms X’s uncle, in practice; it might mean that the Council was paying the care home fees for commissioning the placement for someone who was undoubtedly lacking in capacity, PLUS a personal allowance so that someone had the practical means to pay for things for the gentleman. But the report says that both homes had done that, which would not be consistent with Ms X having had to cover her uncle’s personal expenses from her own funds between Spring and Autumn 2023 – unless the first home had simply lost its grip on why it was being paid more than its fees, and not spent any money at all?]
In its complaint response and response to the LGSCO’s enquiries, the Council acknowledged that there had been significant delays in addressing the matter. It confirmed that the deputyship was underway and assured that, once Ms X provided evidence of her expenses, these would be reimbursed from her uncle’s funds after the deputyship was finalised.
The Council also stated that it had taken steps to address issues from the complaint with the officer involved, noting that the officer had been managing other urgent work, which negatively impacted their ability to handle this case.
Nottingham City Council issued an apology to Ms X for the delays in handling the matter. As part of the agreed action, the Council was required to keep Ms X updated on the progress of the deputyship application at least every two months and it must provide evidence to the Ombudsman to confirm compliance with this commitment.
The agreed actions outlined were deemed a suitable resolution for the injustice caused.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
When a person is paying fees for a care home, either privately or placed under a council’s Care Act functions, on behalf of a person lacking in capacity, they are not obliged to go on doing so forever, if the role becomes something that they no longer wish to manage. In that situation, the person becomes a person without anyone to make the arrangements any longer and under s18(4) of the Care Act, the Council is obliged to take over the commissioning aspect. In that scenario, it will want to be paid, whether or not the person is still a full cost paying person or has capital well under the savings threshold for the subsidy which the council provides through the charging system.
The Guidance requires that councils THINK about this in advance, and in this case, that would have become necessary when Ms X gave notice that she was no longer willing to carry the Power of Attorney role.
It is worrying that the reporter suggests that the OPG rang the council and suggested taking over the Power of Attorney because of course that cannot be done once someone has lost capacity, but deputyship would have been the right thing to organise.
A council is not obliged to take deputyship on, and it is interesting to us to note that the Council treated this request as a matter of community prevention. We think that that is good practice, but that the only defensible thing to do was to get on with the application, because the delays are well known. In the meantime, the practical matter of the need for someone to have money to pay for things needed was an interesting one too: use of the payment system for the fees, to cover an additional sum of money, equivalent to the Personal Expenses Allowance that the charging system would have ensured that the man would have been left with anyway.
We do not think that this is enough of course, because a person with assets that compel deputyship is likely to have a significant sum of money which he can still benefit from, with regard to furthering his wellbeing. The council would have HAD that authority to make decisions about that, in his best interests, after consultation with his relatives, if they had only got on with the application, at a much earlier stage, because any Finance and Property Deputy also has incidental authority to decide what the person needs by way of maintenance.
There is a conflict of interest of course, inherent in that situation, as the money gets tighter, as between the fees owed to the council and the individual duty owed to the person by any deputy. But that is why there needs to be a set of providers of low cost deputyships so that councils do not have to be in that situation.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Nottingham City Council (23 020 647) report.
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