Date of decision: 14 Feb 2025
Summary
Mrs X complained that the Council failed to safeguard her sibling from financial abuse and that a social worker and care provider inappropriately discouraged the appointment of a Lasting Power of Attorney (LPA). She also alleged the care provider failed to deliver one-to-one support as specified in the care plan, causing significant distress to both sisters.
What happened
Mrs X raised concerns with the Council in October 2023 alleging someone was financially abusing Ms Y, after seeing Ms Y’s bank statements. The Council initiated a safeguarding enquiry and allocated an investigating social worker, who visited Ms Y and spoke with her care provider. The social worker recorded that Ms Y was happy with the current one-to-one support received and did not want an outside personal assistant.
The Council also allocated a social worker to re-assess Ms Y’s care and support package; she reported feeling happier in her current home.
Mrs X sought to become Ms Y’s LPA.
The social worker took a phased approach to inducting Ms Y gently into a reasonable grasp of what an LPA could do, via an easy read guide.
Ms Y later changed her mind about granting LPA stating that she wanted to have control over her own money. Ms Y had initially expressed to the social worker that she wanted her siblings to have the authority of an LPA. The social worker concluded that Ms Y had the capacity to decide whether to have an LPA and that it was up to her to decide. Ultimately Ms Y chose not to grant LPA, saying that she did not want to lose control of her finances.
Mrs X continued to request financial transparency – requesting a breakdown of Ms Y’s weekly spendings because she said that Ms Y’s bank statements showed purchases for items she did not have. This was refused. She said the care provider also blocked her attempts to get an Appointee appointed by the DWP to manage Ms Y’s benefits.
The Council closed the safeguarding investigation in January 2024, finding insufficient evidence of financial abuse.
What was found
The Ombudsman discontinued the investigation into the Council’s safeguarding actions and explained that the absence of reasons was on account of confidentiality [presumably as owed to Ms Y?]
No fault was found in the social worker’s interactions with Miss Y regarding the LPA or in the support provided by the care provider. Ms Y was assessed as having capacity to make her own decisions and was happy with her care and activities. There was no evidence the care provider failed to meet Ms Y’s needs or acted against her wishes. No compensation was awarded.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Under section 27 of the Care Act – councils should keep care and support plans under review. This had been done appropriately. The complainant’s perception was that Ms Y had been leant on to be convinced that no LPA was needed. The Council’s perception was that even being a close relative of Miss Y did not mean that Mrs X had the right to intervene in her financial affairs.
Under section 42 of the Care Act – a council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs meaning they cannot protect themselves.
In this complaint, the care provider explained the expenditure to the Council. We surmise it was concerned with what the support provider was assisting Miss Y to do with her own money.
The investigator said this: “The Council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.”
But this is not correct. The Council has no particular role to play in the person’s life other than through statutory functions, and plenty of those, even under the Care Act, do not turn upon mental capacity at all.
We would say that a better formulation would be to say that if its decision-making under the Care Act were to depend on what it thought about the person’s capacity, then yes, it must try to assess it. But its functions – the functions that turn upon capacity – are limited. Safeguarding is obviously one of them, because the triggering of the duty turns upon thinking that the person’s care and support needs prevent them from self-protecting.
Assuming that Ms Y had NOT had capacity to decide about granting an LPA, it would not have been in the gift of the Council to ensure that she granted one, because that is not a best interests decision, and nobody can do it OTHER than Ms Y, with capacity. There was absolutely nothing it could do for Mrs X, other than to explain that legal truth, and tell her what her options were if she wanted to challenge its view.
So it was fatuous in this situation to do anything other than say ‘We have no reason to doubt your sister’s capacity to choose – to choose WHETHER to give you an LPA, but equally to choose NOT to.’ It was not for the Council to decide, although Mrs X may have thought that it would save going to a solicitor – a social worker can sign the Certificate that is required, as to no concerns about capacity, but we have never seen that happen.
Along with that stance, there should have been some thinking about the woman’s capacity to decide whether whoever was under suspicion for abusing her financially, should be being given money or presents etc. – because abuse within a relationship can be one of undue influence, or coercive control.
These issues are distinct from the duty to assess or meet needs. Capacity CAN be relevant to those functions but is not always an issue because the duty is there in any event, and only refusals need to be validated as capacitated before a council walks away.
If the sister thought that her sibling already lacked capacity regarding her finances, she needed to persuade the DWP that management of benefits was beyond the woman, or apply for Deputyship – and those two options are all she would have been able to be informed of.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Lancashire County Council (24 003 626) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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