Sefton Council at fault for failing to carry out a mental capacity assessment

Decision Date: 3rd February 2020

What Happened?

Mr X complained on behalf of his son, Mr A.

Mr A had a brain injury which impacts to some extent on his cognitive functioning and mobility. His mother Mrs X, was given appointeeship by the Department for Work and Pensions (DWP) for the purpose of managing Mr A’s benefits payments.

In 2008, the Council waived Mr A’s assessed contributions for his care and support. They identified that Mr A lacked insight into the importance of support, felt he did not need it and therefore he would not pay.

The Council saw that this would lead to Mr A refusing his care package, which would in turn lead to a worsening of his well-being and put him at risk. It would also lead to an increase in his needs at a later point.

The Council reviewed its decision in 2010, and came to the same conclusion; if the care package was cancelled, it would lead to a worsening in Mr A’s well-being, make him more vulnerable, and increase his needs at a later date.

In 2016, the Council completed a reassessment of Mr A’s care and support needs and continued to waive Mr A’s assessment contributions.

The Council did not then review Mr A until March 2019.

During this assessment, the social worker noted that ‘there was no reason to suspect Mr A lacked insight into his care needs’. He was able to explain why he thought he could manage without the support, and also said he would be willing to contribute to the costs.

The social worker referred Mr A for a financial assessment which assessed Mr A’s contribution to be just over £73 a week.

Mr X complained to the Council stating:

  • Mr A should not have to pay for his care and support as he lacked the mental capacity to manage his finances.
  • The Council had not explained what had changed.
  • The Council did not complete a mental capacity assessment for Mr A.

The Council subsequently arranged for a mental capacity assessment.

What was found

The LGO highlighted that it is at the Council’s discretion whether or not to charge for care and support. Here, the Council used its discretion in 2008 and 2010 to waive Mr A’s contribution, which it was entitled to do so. Therefore the Council was not at fault there.

It was fault that the Council did not review its decision until 2019. However, there was no injustice caused to Mr A, as he continued to benefit from not having to pay towards his care, and there were no concerns raised that his plan was not meeting his needs.

The Council did not complete a mental capacity assessment for Mr A. This was fault.

But once again, the LGO considered that the fault caused no injustice to Mr A, because even if he was assessed to lack capacity, it remained at the Council’s discretion to decide whether or not to charge for care.

The faults identified above however, did cause Mr X injustice, overall. They caused him distress, and he had to take time and trouble to make the complaint.

The LGO recommended that the Council apologise to Mr X for the distress and time and trouble caused by its failure to complete a mental capacity assessment for Mr A.

Points for the public, charging officers, service users, appointees etc

This is a bizarre outcome for a complaint in our view; charging does not turn on mental capacity; liability for charges does not arise from contract and thus does not need offer and acceptance to be evidenced, let alone capacitated acceptance. It arises as a result of the statute making social care chargeable.

Secondly, whether or not someone wants to pay, does not determine whether they get care: it’s irrelevant, and so is their agreement or otherwise. Refusing services IS sufficient to stand a council down, and discharge it from its duty of care – ONE very good reason why a council would be acting imprudently if it took people’s refusal of care as automatically capacitated just because there’s a presumption. If that presumption turns out to be obviously shaky – a situation say, where the person should have been appreciated to be entrenched, or distracted, or troubled or depressed and refusing on account of those issues, and harm befalls the person soon afterwards. And that’s why any council needs to come to its own conclusion about a person’s mental capacity in that situation – when about to walk away.  

There is no point in doing a mental capacity assessment in the circumstances described in this report. It is not a ‘Mental Capacity Act’ decision involving touching or restricting or restraining the service user. The decision whether or not to charge under the Care Act does not need the cover of s5 of the Mental Capacity Act to give the charging officer any protection against action for assault or trespass to his person. The MCA does not give a person a POWER to act, or make effective, something that NEEDS a person’s consent to BE of legal effect, such as a contract or a tenancy; it gives people a defence to the normal consequences of doing whatever is proposed regardless of the fact that the person can’t consent.

It would only be if the man had purported to refuse services that it would have been necessary to assess his capacity; if he in fact said he didn’t want services, and clearly understood that he could qualify for them regardless of being willing to pay, but that not paying could lead to legal proceedings against him, he would have been perfectly free to refuse the offer and the council would have been entitled to walk away.

DWP Appointeeship is not triggered by incapacity, in the MCA sense of the word, regarding one’s finances. The test is being incapable of managing one’s benefits, and that is not quite the same; it is broader, and admits of more reasons, including physical incapability, for an appointee to be needed, than cognitive dysfunction.

We do not grasp what Mr X, the father of the service user, had gone through that could amount to injustice. He was not the appointee; his wife was the appointee.

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The full Local Government Ombudsman report of Sefton Borough Council’s actions can be found here