Decision Date: 25th February 2025
Summary
Mr X, who lacks capacity to make decisions about his welfare and finances, experienced significant delays and inadequate support from the Council following the illness and subsequent death of his aunt, who had been managing his affairs – so he was left without access to his funds and without any representation for a medical emergency.
What happened
Mr X, who does not have the capacity to make decisions for himself, lived independently with support from a care agency. Miss Y was a manager in the care agency.
His aunt was his next-of-kin. She was his deputy and also managed his finances. [It is not clear from the report what kind of deputyship she held – welfare or finance/property.]
Mr X’s Aunt became ill in February 2024 and was admitted to hospital.
Following this Miss Y asked the Council to provide an advocate for Mr X.
When Mr X’s Aunt died in April 2024, the Council said that it would visit Mr X in order to discuss his situation as well as to provide emotional support and counselling if needs be.
Miss Y had to chase the Council up in order for a review of Mr X’s care and support plan, which only took place in mid-June 2024.
However, the review could not be ‘approved’ as Mr X did not have an advocate.
The Council subsequently referred Mr X to the advocate service and an advocate was appointed in July 2024.
Following that, Miss Y complained about the Council’s delays and lack of communication. In response, the Council admitted that there were delays, issued an apology to Miss Y and said it would prioritise arranging an advocate and completing the care needs reassessment for Mr X.
Mr X still could not access his funds. As a result Mr X lost access to the internet and his account.
Miss Y emailed the Council and the next day Mr X’s mental capacity assessment was completed with his advocate also supporting him in this assessment. It confirmed that Mr X did not have the mental capacity to make decisions about his welfare and finances [This must have been obvious if the aunt had already acquired financial deputyship as this is awarded by the Court only on the basis of incapacity].
Mr X had a medical emergency and was taken to hospital in August 2024. Miss Y was unable to reach Mr X’s social worker (Social Worker 1). The Council’s duty team said to Miss Y that the care agency should take medical decisions for him.
Miss Y was still concerned about the fact Mr X did not have anybody who could make lawfully authorised decisions about his health.
The Council found that Mr X’s needs had not changed following a care and support review in late August. Mr X still did not have access to his finances.
During a meeting with social worker 2 Miss Y described how the Council had already completed a mental capacity assessment for Mr X.
Despite this, social worker 2 visited Mr X with the purpose of completing a mental capacity assessment to check whether he could manage his finances. Unsurprisingly, the assessment confirmed he could not.
Social worker 2 then said she would complete an application for an appointee for Mr X. No referral was made until the end of November 2024.
What was found
The Ombudsman found multiple failings with the handling of Mr X’s situation from the Council.
Following the passing of Mr X’s Aunt, the Council should have taken action without delay to reassess his needs, which would have involved considering the extent to which Mr X could make any decisions about his welfare and finances.
Once the Council had concluded Mr X could not decide on his affairs, immediate action should have been taken to appoint a deputy for him.
The report found the Council failed in both the delays to the mental capacity assessments and their repetition, without adequate follow-up.
The Council failed to take an acceptable approach in securing the appointment of a person who could decide about the welfare OR the finances of Mr X.
These faults caused injustice to Mr X. The Council was wrong to expect the care agency to make decisions for Mr X. [Best interests decisions are made by social workers and care managers with social work experience, ideally, under the Mental Capacity Act through the prism of their functions under the Care Act…].
With regards to remedies, the ombudsman stated that the Council should issue a formal apology to Mr X as well as applying to the Court of Protection for a deputy for Mr X.
The ombudsman also recommended that the Council review its processes thoroughly to ensure that a similar situation does not arise in the future.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Section 1 of the Care Act 2014 imposes a general duty on authorities to promote individual wellbeing throughout the Council’s Care Act functions.
This includes social and economic wellbeing, which is listed under Section 1(2)(f).
The multiple delays following the passing of Mr X’s Aunt contributed to an abject failure to promote Mr X’s wellbeing.
We are surprised that the aunt’s death did not have more of an impact on this man’s re-assessment of need, but he was living independently, and the Care Agency sounds as if it was going above and beyond.
The death of Mr X’s Aunt constituted a clear change in circumstances that should have immediately triggered a re-assessment, for which there would have had to have been an advocate, by law.
Section 67 of the Act addresses the appointment of independent advocates. It provides that where an individual would experience substantial difficulty in being involved in assessment, care planning, or review (in fact, revision) processes, and where there is no appropriate person to support them, the local authority must arrange for an independent advocate to facilitate their involvement. The paid Care Agency cannot be the appropriate informal supporter.
Statutory guidance issued under the Act is clear that the need for an independent advocate must be considered at first contact, and that a referral must be made without delay where advocacy is deemed necessary. The 2015 Haringey case makes it clear that any of the statutory processes done without an independent advocate, where one is obviously triggered, is invalid.
The Council delayed even referring Mr X for an independent advocate by approximately five months. This represents a serious departure from the expected standard of practice and constituted significant maladministration.
The referral for Appointeeship beggars belief because without access to his money, the Council made getting on with his life wholly impracticable. The Care Agency used its own funds to cover his expenses.
We are puzzled at the position of the Ombudsman’s own investigator that a deputy was needed, because the Council did make arrangements for Appointeeship in the end, and that would normally be sufficient for the management of benefits. But if the man had a tenancy, he would need a finance and property deputy, of course. If he had inherited significant funds from his aunt, as her next of kin, the same would be the case too. But we do not think that just because someone has had welfare deputyship granted for the benefit of a vulnerable person, the Council needs to take up a similar form of authority. That is because welfare deputyship is not awarded by the Court of Protection, without some very pressing need, given the duty of all health and social care staff to make best interests decisions for people lacking in capacity in the first place.
We are left with an uncomfortable feeling that the investigator might not have known that this is the law but we cannot be sure: there is no reference specifically to welfare deputyship in the report.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Haringey (24 008 874) report.
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