Summary: There was no fault by the Council in its dealings with Mr and Mrs B in relation to their role as attorneys for their late friend, Mr X.

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 a council’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 have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Lasting power of attorney

5. A lasting power of attorney (LPA) is a legal document that lets a person (the donor) appoint one or more people (known as ‘attorneys’) to help them make decisions or to make decisions on their behalf.
6. There are 2 types of LPA:
• Health and welfare LPA gives the attorney the power to make decisions about things like the donor’s medical care or the donor moving into a care home. It can only be used when the donor is unable to make their own decisions.
• Property and financial affairs LPA gives the attorney the power to make decisions about money and property for the donor, for example managing the donor’s bank account and paying their bills. It can be used as soon as it’s registered, with the donor’s permission.
7. The Mental Capacity Act 2005 states that a person must be assumed to have capacity unless it is established that he lacks capacity.

Overview

8. Mr and Mrs B had health and welfare LPA and property and financial affairs LPA for their friend, Mr X. They were also listed as his next of kin.
9. Shortly after Mr X’s death in June 2021, Mr and Mrs B complained to the Council about the way they had been treated by Mr X’s social worker. They were particularly aggrieved that Mr X had been moved to a care home without their knowledge, and before they were told that he had died, his body had already been transferred to a funeral home.
10. Mr and Mrs B then discovered that the Council had been carrying out a safeguarding investigation after concerns were raised about their interactions with Mr X. Mr and Mrs B strongly refute any wrongdoing on their part and want to clear their names.

Analysis

Home visit

11. Mr and Mrs B complain that despite Mr X’s social worker refusing to meet them to discuss Mr X’s care, the social worker visited Mr X at his home without informing them.
12. The Council’s records do not contain any evidence to show that the social worker refused to meet with Mr and Mrs B. In any event, I do not consider the social worker would have been wrong to decide to speak to Mr and Mrs B over the telephone, rather than meeting with them in person. This is because the Council was limiting face to face meetings at the time due to Covid-19, and the matters Mr and Mrs B wished to discuss did not need to be discussed in person.
13. The social worker did not invite Mr and Mrs B when she visited Mr X at his home on 31 March 2021. I have considered the Council’s reasons for this, and I am satisfied that there was no fault in the way it decided not to invite Mr and Mrs B, or inform them that it intended to visit Mr X.

Sharing information

14. Mr and Mrs B complain that when Mr X was admitted to hospital, the Council told hospital staff about safeguarding concerns which had been raised about Mr and Mrs B’s interaction with Mr X.
15. The Council has an information sharing agreement with the NHS to share necessary information to protect the welfare of individuals. I have considered the information which was shared, and the Council’s reasons for sharing the information. I am satisfied that there was no fault in the way the Council decided to share this information with nursing staff.

Key to Mr X’s home

16. While Mr X was in hospital, the social worker contacted Mr and Mrs B because carers needed to collect some clothes and toiletries for Mr X, but they could not gain access because the key to his home was not in his key safe.
17. Mr and Mrs B say that they removed the key for safety reasons. They complain that the social worker threatened to involve the police if they did not return the key.
18. The Council says that Mr and Mrs B initially declined to return the key and that the social worker then said that her only other option would be to ask the police to gain access to the property.
19. The key was Mr X’s property, and it was for him to decide who he wanted to access his property to collect clothes and toiletries. As Mr and Mrs B did not initially agree to return the key, it was not unreasonable for the social worker to say that she may need to involve the police. I have found no evidence of fault here.

Discharge from hospital to a care home

20. Mr and Mrs B complain that the Council did not tell them that Mr X was being discharged to a care home.
21. The Council says that while Mr X was in hospital, he was assessed as having capacity to make the decision to move into a care home. It says the social worker asked Mr X if he wanted anyone to be contacted about his discharge to the care home and he said no.
22. I have seen the Council’s records and I am satisfied that it considered Mr X had capacity to decide to move into the care home, and that Mr X did not want anyone to be contacted about his discharge. As the Council considered Mr X had capacity, it had to respect his wishes. I have found no evidence of fault here.

Funeral home

23. Mr and Mrs B complain that before they were told that Mr X had died, the social worker had already arranged for his body to be taken from the care home to a funeral home. They say they then had to arrange for his body to be moved to his chosen funeral home.
24. The care home manager told Mr and Mrs B that Mr X’s body was moved to the funeral home on the instructions of the paramedics and social worker. The Council says this is not correct; it says it was on the instructions of the paramedics.
25. I have considered the Council’s records and the care home records. I am satisfied that the Council was not involved in the decision to move Mr X’s body to the funeral home. I have found no evidence of fault here.

Safeguarding investigation

26. After Mr and Mrs B complained to the Council, they discovered that the Council had been carrying out a safeguarding investigation and that the case had been concluded and no further action was being taken. Mr and Mrs B want the Council to investigate the allegations so their names can be cleared.
27. The Council was in the process of investigating the safeguarding concerns when Mr X died. It says that if the investigation had been able to continue, Mr and Mrs B would have been informed and been given the opportunity to contribute their views to the investigation. After Mr X died, the Council decided there was insufficient evidence to substantiate the allegations and it decided to close the case. I have found no evidence of fault in the way it decided to close the case and take no further action.

Communication

28. Mr and Mrs B complain that the social worker failed to engage with them as attorneys for Mr X, was rude when she spoke to them, and did not provide them with information they needed about how long Mr X would be staying in the care home.
29. The Council’s records show that it did not establish at any point that Mr X lacked capacity. Mr and Mrs B could therefore not make decisions for Mr X because health and welfare LPA can only be used when the donor is unable to make their own decisions.
30. There was no reason for the Council to contact Mr and Mrs B about how long Mr X would be in the care home. As Mr X had capacity, the social worker could communicate directly with Mr X. If Mr and Mrs B needed information which Mr X and the care home were unable to provide, it was open to them to contact Mr X’s social worker themselves.
31. I have not seen any evidence in the Council’s records to show that the social worker was rude to Mr or Mrs B.

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Final decision

32. I have completed my investigation and do not uphold Mr and Mrs B’s complaint. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman