This LGO’s decision from July 2018 offers some guidance on LA duties where vulnerable individuals have a DWP appointee.
The service user, a young woman, had disabilities causing deficits regarding keeping herself safe and living independently. She lived with her father who acted as her DWP appointee; he dealt with her correspondence and managed her finances.
She received a DP to support delivery of her care, and in her direct name; she was financially assessed as able to make a contribution. He father failed to pay most assessed contributions for 18 months or so, running up a debt of about £2000.
She was deemed to have capacity to choose her father to look after her finances, and initially said she wished him to continue doing so, which the DWP took serious account of. But he continued to let arrears mount up for another year, and the debt increased; the daughter then expressed a wish to take more control of her finances, and she moved into supported living.
The father agreed with the LA that he would stop acting as appointee but he did not action that agreement.
When the care staff at her tenanted accommodation realised she didn’t have enough money to meet her costs, they raised a safeguarding alert with the LA. The LA neither held any strategy meeting or formally assessed her capacity and said the debt created did not constitute “significant harm” (this was pre-Care Act) – but did contact the DWP
Eventually the DWP revoked the father’s appointeeship. The LA said the debts – by now totalling almost £3000 – were the daugher’s responsibility and would not be waived. The daughter got a representative to tell the LA that she didn’t fully understand how to manage her finances, but could do so, with support.
The Ombudsman held that the LA realised that that the woman needed help with her finances because the DWP had appointed Mr X as her appointee in the first place. They were aware that the father was not spending the daughter’s money in her best interests, and may not have understood his responsibilities. It was aware that the daughter was kept short of money.
Findings of the LGO
The LGO view was that the LA should have completed a capacity assessment around finances. If the LA was relying on the statutory presumption it should have recorded that it was doing so because there was enough doubt to raise the need to consider whether the presumption was rebutted.
It should have supported the woman to manage her own finances if with support, she would be able to manage her finances; if she had capacity the LA should have considered other ways to support her vulnerabilities and sought her consent.
The council failed to give the daughter sufficient information or support to make an informed decision about who should manage her finances, and to ensure she understood the DP agreement she had signed. It failed to meet her communication needs or consider appointing an advocate. It LA failed to consider properly whether she was or could be subject to financial abuse and failed to protect her from significant harm (a substantial debt). It was aware that she didn’t wish to challenge her father due to her fear that it would damage their relationship but should have thought about what that could expose her to, in a more structured way.
Recommendations of the LGO
The LGO recommended that the LA should waive all arrears (almost £2000) accruing after it realised that the father was not paying the daughter’s assessed contributions; pay her £350 for the avoidable distress, time and trouble caused to her and ensure that assessments and support plans address finances adequately when there is any indication that the person needs support in that area; and finally, ensure communication needs and safeguarding concerns are appropriately recorded.
Considerations/learning for councils
How do you ensure that appointees are clear, regarding their obligations to pay assessed contributions on behalf of the person for whom they act?
And how does this sit with a council’s need to exercise their discretion, conscientiously, to consider discounts from assessed income, for DRE – private expenditure from the funds, which are, after all, still the client’s funds, over which the council has no preferred creditor status?
Does the existence of an appointee act as a ‘flag’ for any council or CCG that the person they act for is more likely to be vulnerable/ require additional safeguards?
How effective are the council’s mechanisms for ensuring that vulnerable individuals understand their financial obligations e.g. regarding acceptance of DPs?
How good are the capacity assessments around being able to understand the basics of a direct payment in the first place, let alone manage the payment and management obligations, such that an Authorised Person may be needed, to hold a budget as a principal, not merely as the manager (the agent) of a capacitated client?
How good are councils at supporting individuals to have capacity around managing their own benefits based finances and/or make informed decisions about others managing them?
How do councils arrange to act quickly to avoid debts accruing to vulnerable individuals, particularly where someone else is not making required payments on their behalf?
How promptly do councils or CCGs raise alerts with the DWP if they have concerns about an appointee’s actions?
Do they ever use the specific duty of co-operation, if the DWP seems reluctant to engage with them – this would force the DWP to respond in writing, under the Care Act, s7.
How would your local safeguarding professionals respond to situations such as this?
The decision can be found at – https://www.lgo.org.uk/decisions/adult-care-services/charging/17-015-575