Date of decision:
28 July 2025
Summary
This was a complaint about how the Council managed temporary care home charges, financial access, advocacy arrangements, and the move toward deputyship for an elderly woman in its care.
What happened
In June 2023, the Council arranged for an elderly woman to move into temporary residential care due to limited space at her son’s home and her care needs.
Financial assessment and charging procedures were discussed with her son, who represented her for management of finances, but he did not provide paperwork needed for a full assessment, so the Council used a benefits check for a “light touch” assessment.
Later, invoices for care costs were sent. The son claimed a social worker said the Council would pay, but records did not confirm this, and the Council could not reach him when following up.
A new social worker took over in December, requesting bank statements for a full financial assessment, which were provided. In January 2024, the woman moved to her planned retirement flat, and the social worker carried out assessments with both her and her son present, clarifying the charging policy. In February, questions arose around large cash withdrawals on her account, prompting the Council to begin a safeguarding enquiry over concerns about financial management.
Social workers visited in February and March 2024, conducting mental capacity assessments and concluding she lacked capacity for finances and safeguarding decisions. Her son raised repeated complaints about the Council’s involvement and questioned its intent to cover costs. The Council clarified its concerns and the need for potential deputyship.
In April 2024, the son withdrew from managing her finances, informally, and the social worker arranged for an Independent Mental Capacity Advocate (IMCA), sending a consent form via care staff, who secured her signature.
By early May, the IMCA and social worker visited, and the Council began preparations to apply for deputyship. Meanwhile, arrangements were made with care staff and other family members so the woman could access funds and shopping. At the end of May, the son resumed financial management.
The safeguarding enquiry ended in June; no formal action was taken, but concerns persisted. Ongoing, the Council needed further information for financial assessment, not always provided by the son. In August, the Council became Appointee for her benefits, responsible for spending in her best interests; arrangements were made to support food shopping. Complaints about loss of autonomy and the Council’s financial control continued from the son through September and October, culminating in escalation to Ombudsman review in November 2024.
What was found
No fault was found with the Council’s financial assessment, care charging, advocacy arrangements, or preparations for deputyship. Robust documentation confirmed the Council discussed charging, involved social workers correctly, conducted timely capacity assessments, appointed advocacy consistent with statutory guidance, managed finances sensitively when the son withdrew, and prepared properly for deputyship. The distress, inconvenience, and reduced autonomy experienced by the elderly woman reflected the inherent consequences of safeguarding processes, not maladministration.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman’s analysis accurately notes the procedural adherence to charging, capacity, advocacy and safeguarding, but omits important nuances on public law standards and statutory duties under the Care Act.
Where incapacity is suspected, in the context of an assessment of needs, and it raises a safeguarding concern, it is not IMCA advocacy that is triggered, but Care Act advocacy under s67. It should be timely, and not turn on incapacity but on substantial difficulty instead, to be consistent with the involvement requirements of ‘Making Safeguarding Personal’ as well. We find it bizarre that the investigator has spent any time discussing how it came to be that the woman was asked to sign a consent form for the appointment of an advocate. In terms of safeguarding, that is not the first thought: it should be whether the person’s condition stops them from protecting themselves – because that is exactly why substantial difficulties triggers the right to an independent and paid advocate!
In the context of deputyship and financial management, case law strongly emphasises the narrow scope of any resulting power—deputyship is not a blank cheque for overriding a person’s preferences, and its use must remain proportionate, with recourse to least restrictive alternatives and best interests under both the Mental Capacity Act and Care Act, even if it is financial deputyship: it is residual, and not global with regard to any purchase or expenditure. Where a family member withdraws from managing finances, public law requires the authority to apply for appointeeship or deputyship, if necessary, and to act transparently, ensuring that the service user’s own access to funds and autonomy is preserved wherever practicable.
On financial assessments, “light touch” procedures must be deployed strictly in line with regulations, and refusal or inability of a relative to co-operate does not in itself entitle a council to apply default thresholds without seeking further evidence or offering clear information and rights of challenge. A person cannot themselves be regarded as refusing to co-operate when they have a condition which impacts on their cognitive functioning.
When an authority becomes an Appointee, it must act as a fiduciary, with clear and auditable records, openness, and careful facilitation of the individual’s ability to use their own money as far as their wishes and capacity allow.
The Ombudsman’s conclusion that no maladministration occurred may overlook the requirements for record keeping, the practical realities of involving the person in decision-making as far as is possible, and the court precedents highlighting the dangers of equating procedural correctness with substantive fairness. In similar cases, public law principles require ongoing scrutiny of what is actually happening to the individual’s autonomy and wellbeing, not just that a statutory process has been followed. Councils should be reminded always to document their logic, consult appropriately, avoid reliance on informal arrangements for prolonged periods, and ensure any reduction in autonomy is strictly necessary and lawfully justified.
In summary, while the report reflects careful process adherence, councils and professionals should not conflate this with the full statutory duties imposed by the Care Act, Mental Capacity Act, or public law. They must go further to demonstrate that decision-making is genuinely person-centred, proportionate, and open to challenge, and that all options for supporting autonomy are explored before protective measures are formalised.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Essex County Council (24 013 349) 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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