Summary: Ms C says the Council has failed to properly assess her capacity to manage her finances independently. There is no fault in the Council’s actions. It has completed an assessment in line with the Mental Capacity Act 2005 and the Code of Practice. The Ombudsman cannot challenge a professional judgement where there is no procedural fault.

The complaint

1. The complainant, who I refer to as Ms C, complains the Council failed to assess her capacity to manage her money properly. This means she cannot access all her money and the Council remains in control of her monthly income.

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The Ombudsman’s role and powers

2. 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 an organisation’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)
3. 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)

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How I considered this complaint

4. I spoke with Ms C about her complaint and considered information provided by her advocate. I considered the Council’s assessments of Ms C. I applied the Mental Capacity Act 2005 and the associated Code of Practice when deciding whether there was fault in the Council’s actions.
5. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

6. Ms C lives in supported accommodation in the community. Since 2018 the Council has acted as Ms C’s appointee for benefits. The Council gives Ms C money every month for her personal expenses and pays her bills from her benefits. Ms C considers she has capacity to manage her financial affairs and no longer needs Council involvement. Ms C asked for reassessment of her capacity to manage her financial affairs. The Council reassessed but did not change its view on Ms C’s capacity.

What should have happened

7. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
8. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
9. 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.
10. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:
• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?
11. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

What happened

12. Ms C says the Council considered irrelevant factors when it completed the mental capacity assessment.
• Ms C says the medical diagnosis the Council has cited is from when she was a child and not relevant to the assessment. The Council says the mental capacity assessment specifically asks whether the person has an “impairment of the mind or brain” or “disturbance” that affects the way the person’s brain or mind works. The Council says this is therefore a relevant consideration. The Council says a learning disability is a lifelong condition, and a personality disorder is a condition which can lead to an impairment of the mind. The Council also says it discussed this diagnosis with Ms C’s GP.
• The assessment took seven months and therefore was not time specific as required by the Mental Capacity Act 2005 and the Code of Practice.
• The report focuses on:-
1. people who influenced Ms C in the past who are no longer in her life;
2. the ability to do times tables which is irrelevant to managing money;
3. to complete money management and debt courses. Ms C says she has completed these already;
4. savings, Ms C says she cannot save due to the limited money the Council gives her;
5. getting into debt. Ms C says she can make an unwise decision which includes getting into debt;
6. being too trusting. Ms C says just because she is trusting this does not mean she cannot manage her money.
13. Ms C says the ability to control and manage her own money is important to her.

Was there fault causing injustice?

14. The Ombudsman’s role is not to decide whether Ms C has capacity to make decisions about her finances. Our role is to decide whether the Council followed the correct process to reach its decision. In this case whether it followed the Mental Capacity Act 2005.
15. I understand Ms C wants to manage all of her money, so she is independent and in full control of her life. However, I have considered the Council’s mental capacity assessment and cannot say there is procedural fault in the actions of the assessor. The assessor’s questions firstly had to find out whether Ms C had a “mental impairment” which could affect her ability to make decisions. Secondly whether she could “understand, retain, use, and weigh up the information” relevant to the decision. The questions asked were therefore relevant. In particular whether Ms C could “weigh up” the pros and cons of making decisions about her money.
16. In addition:-
• an advocate supported Ms C through the assessment. The advocate did not raise any issues about the unfairness of the assessment, or the inappropriateness of the questions asked by the assessor;
• the assessor consulted several people as part of the assessment to get a balanced view about how Ms C was managing the money she receives monthly;
• the assessor used several different forms of interaction to evaluate whether Ms C could calculate sums. While I agree knowing the times tables in itself is not evidence of whether someone can manage their money, this was only a small part of the overall assessment;
• comments and analysis about Ms C’s past behaviour, kindness/trusting nature, buying different phones, and current relationships with people were relevant. This is because they showed whether Ms C could understand the effects of giving money away in relation to managing her own finances;
• the time taken to complete the assessment was delayed. This was partly caused by the assessor getting information from a variety of sources and the impact of COVID-19. I cannot say the delay caused Ms C significant injustice;
• the assessor provided a reasoned balanced decision about why she felt Ms C did not have capacity to manage her finances.
17. The Council has said it will reassess Ms C in twelve months. Ms C therefore has an opportunity to show the Council she can weigh up and make decisions about her money. Ms C can also challenge the Council’s decision by making an application to the Court of Protection who can look at the merits of the Council’s decision

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Final decision

18. I have found no fault in the actions of the Council. I have now completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman