Warwickshire Council at fault regarding mental capacity assessments and failure to provide an advocate

Decision Date: 28/02/2020

What Happened

Ms X, an Independent Mental Health Advocate, complained on behalf of Mr B.

In March 2016 Mr B became an in-patient at a hospital for adults requiring mental health care; it was unclear from the report whether this was voluntary or not.

A mental capacity assessment in January 2017 concluded that Mr B lacked capacity to make decisions regarding his current or future needs.

In April, after his health had improved, Mr B moved to a care home for people with mental health conditions.

The LGO report did not go into any detail as to what his status under the MHA was, and did not mention how it was decided he would move to a care home, or whether his mental capacity assessment was reviewed.

The Council sent Mr B a financial assessment form, which he completed with ‘support during a meeting’ held in July.

In September the Council told Mr B he would have to pay £87.15 per week for his care, backdated to April.

Mr B refused to pay the charges. He said that he had not been told he would have to pay when he moved into the care home.

The Council said that it tried to arrange an advocate for Mr B, probably in connection with the care planning part of the process, but the advocacy service would not accept the referral.

The LGO report does not state when the Council tried to find an advocate, or the reasons the service declined the referral. It simply states ‘An Independent Mental Capacity Advocate (IMCA) must be instructed, and then consulted, for people lacking capacity who have no-one else to support them (other than paid staff) whenever a local authority is proposing to arrange accommodation (or a change of accommodation) in a care home, and the person will stay in the care home for more than eight weeks. The IMCA represents and supports the person who lacks capacity and they will provide information to make sure the final decision is in the person’s best interests.’ Also, the report did not state whether the Council tried different advocacy services – generic ones as well as Care Act or IMCA advocacy services.

The Council took Mr B to the local citizens’ advice bureau in November, where an advisor told Mr B that he did have an obligation to pay the charges. Mr B still refused to pay the charges.

Since July 2017 (three months after moving into the care home), Mr B had repeatedly told the Council he was unhappy living there, and wanted support to move to different accommodation where he could live independently.

The Council said that it helped him make enquiries about suitable supported housing, by helping him attend the Council’s housing department. Again, the report did not specify when, nor whether it carried out any reviews during this period. It is not clear whether any social worker supported him to present as homeless, because he was unsuitably housed, as opposed to merely seeking to register.

In August 2018, the Council again made a referral for an advocate for Mr B to be present when discussing his options for accommodation.

The advocate, Ms X, complained to the Council:

  • the Council had failed to carry out capacity assessments in relation to Mr B’s understanding of the decision to move into the care home, and the financial implications of that decision.
  • the Council had not arranged for an advocate to support Mr B with the financial assessment, or his discharge from hospital.
  • she highlighted that Mr B said he had not agreed to the placement and did not understand that he might have to pay.

In September 2018, the Council undertook a capacity assessment to decide if Mr B had capacity to choose his housing options, live independently and manage his finances independently. Not until February 2019 was it concluded that he was deemed to lack capacity in all areas of the assessment. Again, from the report it is unclear why it took so long to make this conclusion.

The next month, a professionals’ meeting concluded that it would be in Mr B’s best interests to move.

The Council then began taking steps to find alternative accommodation.

Mr B agreed to accept an appointee to manage his benefits and support him with the payment of his bills.

The appointee (undisclosed), found that Mr B’s capital had increased above the threshold for benefits and recommended that he pay some of the outstanding care charges to reduce his capital below the benefits threshold.

The Council said it was then agreed in a multi professionals’ meeting that it was in Mr B’s best interests to pay £3500 of the outstanding charges, which was organised the next day.

Ms X said the decision to repay some of the outstanding charges was made before the best interests meeting, and Mr B did not have an advocate during that process.

She went on to make a safeguarding referral, concerned that Mr B was put under pressure to pay the money.

As a result of a safeguarding meeting, it was agreed to make an application to the Court of Protection for an appointed deputy to manage Mr B’s finances. The report did not state when this meeting took place.

After the £3500 that Mr B already paid, he still owed around £8500 in care contributions.

What was found

When Mr B was discharged from hospital, he was assessed to lack capacity to consent to his placement, and the decision to place him was made in his best interests. The LGSCO highlighted that the Council should have instructed an IMCA to represent and support Mr B. It did not do so, which was fault.

The Council then carried out a financial assessment without establishing whether Mr B had capacity to take part in that assessment. This was fault. The LGO stated that it seemed likely that Mr B would have had substantial difficulty engaging with the assessment process, so the Council should have arranged for an independent advocate to support and represent Mr B. It did not do so, which the LGSCO found as fault. We at CASCAIDr do not agree with the LGSCO on this point as the law does not require councils to provide advocates for the purposes of financial assessment.  

The report states that the statutory guidance requires that a capacity assessment should be carried out when a person’s capacity is in doubt

The LGO stated that the Council should have carried out a capacity assessment to determine if it thought that Mr B had capacity to manage his finances independently. It did not do so until September 2018. This was fault.

Mr B repeatedly said he was not happy living in the care home. Again, the Council should have carried out a capacity assessment to determine if Mr B had capacity to decide where to live. It did not do so until September 2018. This was fault.

The LGO stated it was not satisfied that the decision that Mr B should pay £3500 of the outstanding care charges was made properly. There were no records to show how the decision was made and what factors were taken into account, or that Mr B was provided with the support of an advocate during the decision process. This was fault.

Remedies

The LGO recommended that

  • the Council pay £1000 to Mr B in recognition for distress caused by the build-up of arrears
  • the Council will make a decision about where it would be in Mr B’s best interests to live.
  • The Council should support Mr B to move to alternative accommodation, if it is decided that it is in his best interests to move; and
  • The Council should provide training to social care staff on the Mental Capacity Act.  The training will cover when capacity should be considered, when capacity assessments should be carried out, when best interests decisions should be made and when it is necessary to arrange an advocate. Staff will also be reminded to properly record capacity and best interests decisions.

The LGO further stated: “I am not recommending that the Council write off the outstanding arrears, but I consider it should make a payment to Mr B as a remedy for the distress he suffered as a result of its failings.” It did not recommend a specific amount.

Points for the public, charging officers, financial affairs officers, service users, family members and advocates

There are three key points that arose from this complaint. Firstly, the council carried out a mental capacity assessment when Mr B was in hospital in January 2017. What it failed to do was to appoint an independent advocate to support Mr B. The Care Act 2014 (s.67(4)) sets out that a council must appoint an advocate in the context of care planning as it was with Mr B when the following is satisfied:

The condition is that the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following—

(a)        understanding relevant information;

(b)        retaining that information;

(c)        using or weighing that information as part of the process of being involved;

(d)        communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means).

Mr B was moved to a care home for people with mental health problems 3 months after the mental capacity assessment failed to include an advocate. Whilst we do not have the detail of that move from the LGSCO report, we know that it was not until August 2018 that the council referred him for advocacy support and was taking active steps to seek alternative accommodation. This is not just fault, but a clear breach of the requirements of the Mental Capacity Act 2005. This legislation affirms in s.39(4) and (5) that when a council is making arrangements to provide a person who lacks capacity with accommodation such as Mr B’s placement in a care home, this is what it must do:

(4) Before making the arrangements, the local authority must instruct an independent mental capacity advocate to represent P unless they are satisfied that—

(a)          the accommodation is likely to be provided for a continuous period of less than 8 weeks, or

(b)          the arrangements need to be made as a matter of urgency.

(5)          If the local authority—

(a)          did not instruct an independent mental capacity advocate to represent P before making the arrangements because they were satisfied that subsection (4)(a) or (b) applied, but

(b)          subsequently have reason to believe that the accommodation is likely to be provided for a continuous period that will end 8 weeks or more after the day on which accommodation was first provided in accordance with the arrangements, they must instruct an independent mental capacity advocate to represent P.

The LGSCO report found fault with this council for failing to provide an advocate for the purposes of financial assessment. This is not what the law says. The Care Act 2014 says nothing about a requirement for a person to have an advocate for that purpose. What it does is outline circumstances in which an advocate may be required to be appointed in s.67.

The Department of Health Statutory Guidance sets out the following in relation to advocacy support:

8.18 At the time of the assessment of care and support needs, the local authority must establish whether the person has the capacity to take part in the assessment. If the person lacks capacity, the local authority must find out if the person has any of the following as the appropriate person will need to be involved:

  • enduring power of attorney (EPA)
  • lasting power of attorney (LPA) for property and affairs
  • lasting power of attorney (LPA) for health and welfare
  • property and affairs deputyship under the Court of Protection
  • any other person dealing with that person’s affairs (for example, someone who has been given appointeeship by the Department for Work and Pensions (DWP) for the purpose of benefits payments)

8.19 People who lack capacity to give consent to a financial assessment and who do not have any of the above people with authority to be involved in their affairs, may require the appointment of a property and affairs deputyship. Family members can apply for this to the Court of Protection or the local authority can apply if there is no family involved in the care of the person. While this takes some weeks, it then enables the person appointed to access information about bank accounts and financial affairs. A person with dementia for example should not be ‘forced’ to undertake a financial assessment, to sign documents they can no longer understand and should not be punished for any incomplete information that is elicited from them. The local authority should be working with an EPA, a LPA or a deputy instead.

In Mr B’s situation, the LGO report identifies that he was ‘supported during a meeting’ to complete the financial assessment form and it is at this point that the council got it wrong. What LGO says about Guidance requiring a capacity assessment whenever capacity is in doubt is not true. The council should have assessed Mr B’s capacity because of the responsibility of the council to source an advocate if one is needed. When supporting Mr B to move to alternative accommodation, the council then carried out a mental capacity assessment and this took five months to conclude that he lacked capacity to make decisions about his finances. He should have received the support much sooner as we can see from the LGSCO report that he ‘agreed’ to an appointee acting on his behalf who then determined that paying a £3500 debt was in his best interests. It is unclear whether the council were acting as appointee for him, and if they were we would have been concerned at this being a clear conflict of interest. We do suspect that this was the case, given the appointee determining the need to repay a debt that Mr B incurred without having had the relevant support in relation to his finances.

The LGSCO was right to determine that the decision-making by the appointee was in doubt – the recording should have indicated how the decision was made. However, when someone has an appointee, they are ‘appointed’ by the person who would not then require an advocate as the person’s interests become the responsibility of the appointee.

In terms of the reimbursement of £3500 to Mr B, the LGSCO determined that once the Deputy was appointed, if it decided that the payment was wrong then Mr B would be reimbursed. Depending on how long that would take, Mr B would still be unable to use this money and it is our view that a reimbursement on the basis of goodwill could have addressed this for Mr B.

The complaint was raised by Mr B’s independent mental health advocate who clearly knew some law and did her job in raising this on Mr B’s behalf. The challenge to the council led to the LGSCO recommendation for training for social care staff. This training was required to focus on the basics including when a mental capacity assessment be considered, carried out and when an advocate should be appointed. It is disappointing that these matters are still an issue for councils despite the number of years the Mental Capacity Act 2005 has been in force. 

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report of Warwickshire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/18-017-301

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