Case No. ZC20C00674

32.KB requires full time care. She cannot be left alone in her own home. She needs to be accompanied whenever she is out of the house. She can manage some basic tasks herself but needs prompting and requires assistance with many other basic activities of daily living. AB receives carer’s allowance. From when KB was about 19 years old, the Local Authority implemented a care plan which provided for 28.74 hours of care per week from personal assistants. This was to provide respite care for AB, it being expected that she would continue to provide care for KB herself. KB was also attending a Day Centre on three days a week. For some years AB received Direct Payments pursuant to a Direct Payments Agreement with the Local Authority. The agreement would be renewed annually but the material terms remained unchanged. In cross-examination AB was shown a copy of one such agreement which, she agreed, bore her signature. She told the court that she did not recognise the document or the terms. Those terms included stipulations that:i)Since she was receiving direct payments herself, she had to open a separate bank account for the purpose of managing the direct payments (paragraph 3.1 of the agreement);ii)To use the direct payments only for services enabling her to achieve the agreed outcomes and to meet the needs agreed in the Plan (3.3). iii)Not to use the direct payments: a) to pay for more hours to a Personal Assistant or agency than we have assessed you as needing by paying a lower hourly rate than we have used as the basis for calculating your Direct Payment; b) for health related services – such as dentist, chiropody, physiotherapy. c) for household expenses, such as food, personal items or utility bills; d) for accommodation - rent, mortgage payments. (4.1)iv)Not to use the direct payments to pay for services from a spouse, civil partner, close relative or other person who lives in your household without our written agreement. (4.3)33.The Local Authority would require accounts to be provided showing how the Direct Payments had been met. A Direct Payments Policy was also in place. AB was treated as the “authorised person” within the terms of the policy. Under paragraph 13.4 of that policy, “An authorised person should consider carrying out DBS checking or obtain verification that DBS checking has returned a satisfactory result for any person from whom a service is secured through direct payments, where the adult with care and support needs lacks mental capacity to make the decision on how their needs are to be met, or on who is to be employed.” DBS checking was therefore advisable in KB’s case but was not mandated by the Local Authority.34.AB set up a bank account for the purposes of managing the Direct Payments. I shall refer to it as the DP account. I have some statements for the DP account. AB also had an account in her name and KB’s name with the same bank which I shall call the Personal account. AB had sole control over both the DP and personal accounts. In addition, as was confirmed in oral evidence and not disputed, AB had a joint bank account with GH (“the Joint account”). No statements have been provided from the Joint account. AB also ran a bank account for the church she founded (“the Church account”). I have seen some statements from the Church account. Further, I have seen some statements from accounts in the name of KAS, which were operated by GH.35.I do not have the benefit of a comprehensive set of bank statements from all the accounts over which AB had sole or joint control. Neither do I have the benefit of a forensic accountancy report. The oral evidence about transactions between bank accounts was confused and unclear. However, having regard to all the evidence I have read and heard, I reach the following conclusions in relation to the financial arrangements:36.Direct Paymentsi)AB controlled a number of bank accounts including the Church account, the DP account and the personal account, as well as a joint account with GH. The accounts all appear to have been very active and AB was involved in numerous transactions every week involving different accounts. There may well be other accounts the statements from which I have not seen. She was responsible for transactions which saw money flowing freely between different accounts.ii)AB purported to employ GH and JK using Direct Payments paid to her pursuant to the Direct Payments Agreement with the Local Authority. They were purportedly paid as carers for KB. AB made monthly payments to GH and JK as evidenced by bank statements from the DP account. Payslips were prepared recording the payments. I reject GH’s evidence that he did not receive payments as a carer for KB. The bank statements show payments being made to him. These arrangements were in place in or around February 2020 and had been in place for several years before then.iii)I am satisfied that AB knew that GH was not permitted to work in the UK because of his immigration status. They were married and had lived together as husband and wife for several years. They had a joint bank account and close financial arrangements. Documents showing GH’s false name, KAS, were on AB’s laptop. A bank statement at [A77] from the account of “KAS” shows a receipt of £300 on 14 October 2019 from the personal account that AB controlled. There is another £300 payment from the same source a month later. Payments were made to the Church account, which AB controlled, from the KAS account. I find that AB knew that GH was using a false identity and had opened a bank account using that false identity.iv)JK would, as she told the court, pay some of the money she received from AB as recorded in her payslips, back to AB. The mechanism sometimes used was for JK to make payments to the Church account. This is but one example of financial transactions that give rise to serious concern that AB has used the Church account inappropriately. The amounts she paid back varied and there was no regular pattern of paybacks. I accept JK’s explanation that AB told her that these payments back to her represented remuneration to AB for the care she had provided to KB because JK was not working the number of hours represented on the payslips. JK accepted that her own pay was usually £250 per month, even though the payslips in her name were for over £400 per month. JK struck me as very trusting and naïve and I do not believe that she thought she was doing anything wrong. To her, AB was an authority figure and she did what she was told. Some of these payments back to AB are shown in bank statements, corroborating JK’s account. This arrangement was clearly contrary to the Direct Payments Agreement. It was, and I am satisfied that AB knew that it was, a means of diverting the direct payments to benefit her, AB. The Church account was porous in that payments were made to and from it via personal accounts for AB and other family members. I have no doubt that the monies paid by JK to the Church account were ultimately used for the benefit of AB. There are likely to have been other payments by JK to AB out of her initial payments from the DP account, that were made in cash or through other accounts, but I do not have a comprehensive set of statements to establish the extent of the payments. I reject AB’s evidence that the repayments were arranged due to JK working fewer hours than agreed. If that had been the case then the monthly payment would be reduced or adjusted accordingly, rather than a re-payment being demanded. Further, there would have been a credit within the Direct Payments accounts with excess funds available – but there is no evidence of such credits or excess funds. Her evidence conflicted with that of JK. I am sure that one of the motivations AB had for diverting Direct Payments was that she was providing a great deal of care to KB herself. AB may well have considered that she was entitled to payment for caring for KB in excess of the benefits she received, but the agreement was that the direct payments were for employed carers, not for her. By ensuring that some of the money purportedly paid to JK as a carer was diverted back to benefit her, AB acted dishonestly. She was, I am satisfied, aware of these arrangements because she effectively directed them, and, objectively viewed, they were dishonest. It follows that AB has not been honest with the court about these arrangements. I am sure that she has hidden the true position from the court in order to hide what she knows to have been wrongdoing.v)GH denies ever having received payments for caring for KB and so does not make any allegation that he made payments back to AB from the money received from her in the same way as JK. I am sure, notwithstanding his denials, that he did receive payments from AB for caring for KB. There is unambiguous evidence in the bank statements provided to the court of payments being made to him which correspond to the amounts recorded in the payslips. The hours of work for which AB paid GH, as recorded on the payslips and represented by the payments made to his account, were far in excess of the hours he spent doing minor chores for the benefit of AB and KB, such as shopping, ironing, and some domestic cleaning. From 2017 onwards he would visit the family home at weekends, so he was not providing anything more than occasional services, if any, on weekdays. All witnesses told the court that he was not involved in any personal care of KB. All he did was to help with some chores. Yet he was paid through the Direct Payments scheme for 60 hours’ work a month. Statements from one of GH’s bank accounts, in the name of KAS, shows that he withdrew £1,270 from cash points from that account in October 2019 alone [A77]. He clearly conducted many dealings in cash. He told the court that he did shopping for KB. There is no audit trail showing where the money came from to pay for the shopping. There are payments between accounts controlled by AB and accounts controlled by GH, including their joint account. I only have some statements from some accounts but the clear picture is of money passing to and from GH and AB on a frequent basis. It is highly likely, in my judgment, that money from the direct payments, intended to pay for KB’s care, was used by AB and GH for other purposes. vi)AB has consistently failed to disclose her true relationship with GH. She has said in these proceedings that they were married in a religious ceremony at the church at which she, and later, GH, were ministers in 2013 and there is no dispute about that. However, she wrote a “to whom it may concern letter” stating that she had known GP since he had attended a church service, since when “I began to know him more.” In two other “to whom it may concern” letters dated 14 and 18 February 2020 she writes as a pastor to confirm that GH had been in receipt of support from the Church as a Charitable Organisation for his “living expenses”. Again, there is no mention that they were married. She did not disclose their relationship to the Local Authority when she began to use Direct Payments to pay him for caring for KB. I have noted that the Direct Payments agreement required her to do so. She did not tell the police in interview the true nature of their relationship, giving the impression that he was a family friend and carer, not that they were married. She referred to him as “uncle” to KB’s social worker in August 2020 [F429]. CD and EF sought to explain to the court that “uncle” was a term of endearment to any senior male, but whilst I accept that AB was not intending to suggest that GH was KB’s uncle by relation, the use of the term obscured the true relationship between AB and GH which she neglected to mention. I am satisfied that the reason why AB failed to disclose her true relationship with GH to the social worker, to the Local Authority and to the police, is that she wanted to give the false impression that he was an unrelated, paid carer. In fact, she used the Direct Payments to pay money to him which she and GH then used for purposes other than for providing paid care for KB. As with the arrangements in relation to paybacks from JK, AB was dishonest in her financial dealings regarding the use of Direct Payments purportedly for KB’s care by GH.vii)Again, I conclude that AB has not been honest with the court about her arrangements involving the use of Direct Payments to give money to GH which was not truly for care services rendered by him and which resulted in financial benefit to him and her. She has misled the court in order to hide her wrongdoing in that respect. Likewise, GH has sought to hide his financial benefit from the misuse of the Direct Payments in order to distance himself from what appears to be fraudulent activity.viii)I am not satisfied that the evidence establishes that either CD or EF were knowingly involved in any of the financial arrangements involving Direct Payments. AB was very much in charge of those arrangements and there is no evidence that she discussed them with her children or involved them in the transactions. There are payments into the Church account by CD and EF, which they explained to be donations to the Church. They were not regular and I accept that they were genuine. There were payments out to CD and EF from the Church account but they explained their purposes - for example to cover expenses for a particular event - they were occasional and, again, I accept them to be genuine. The evidence does not persuade me that CD or EF were parties to any dishonest arrangements involving the Direct Payments. 37.Financial Dealings in KB’s Namei)The tenancy for the flat is in KB’s name, as were a utility account (water) and a warranty for a washing machine at the flat. Documentary evidence shows that KB was recorded as a secretary of the Church with what purports to be her signature appearing on some Church documents as secretary. An application was completed to open a bank account in an African country with her name and signature appearing. There is also a typed letter in her name suggesting that EF would be living at KB’s home to assist in her care, again purportedly written by KB. She was incapable of understanding the meaning of the documents she was apparently signing or which purported to be in her name. What appears as her signature was, in each case, very probably written by someone else.ii)As to the arrangements for the flat, I do not infer any dishonesty or malpractice by AB or any other person from the documentary or other evidence. During the course of the hearing I was concerned that the flat was never for KB’s use but was put in her name in order to provide accommodation for CD. However, I accept that KB did live there, albeit she spent a lot of time at the family home, particularly when CD was not around to look after her due to CD’s university or training commitments. AB, CD and EF thought it natural for agreements in relation to the flat to be in KB’s name. I accept that they simply did not think about whether, for example, a warranty should be in KB’s name, because, as they saw it, the flat was hers and so was the washing machine within it. As to the letter about EF living at the flat, purportedly written by KB, I accept that this letter was never sent to anyone. It was AB who wrote the letter, as she accepted. It would have misled a recipient into thinking that KB had written it, but it did not in fact mislead anyone or procure any financial advantage. It does however underline that AB can be casual with the truth.iii)AB did not give any satisfactory explanation for why KB appeared on documents as the secretary of the Church, or for why her signature should appear on certain Church documents including an application to open a bank account. This is an example of AB misusing KB’s name. AB told the court that the application was not submitted. There is no other evidence on whether or not it was submitted. However, KB’s signature was on the document and she was, apparently, secretary of the charity for a period of time. AB is responsible for those matters. In my judgment it was expedient for AB to use KB as the secretary. It saved time and effort. However, it was plainly wrong to use KB’s name in this way.38.The Lasting Power of Attorneyi)A Lasting Power of Attorney for property and affairs was executed on 12 July 2018 under which KB was the donor and AB and CD the donees. The family had instructed a solicitor to deal with this matter. The solicitor had signed section 9 of the LPA form as a witness to the signature of KB (whose name appears not as a signature but in capital letters both in section 9 and section 15). The certificate provider was a general medical practitioner who signed on 12 July 2018 certifying that the donor understood the purpose of the LPA and the scope of authority conferred under it and that they had discussed the LPA with the donor. Clearly they could not have discussed the LPA with KB without realising that she did not have the capacity to understand its purpose and scope. Further, the solicitor should have advised the family that KB did not have capacity to make the LPA. The GP has not been traced. She may have believed she was signing some other form of document. It is possible that she signed without reading. It has certainly not been established that her signature is a forgery.ii)Naturally, it is concerning that the LPA was made in these circumstances but I heard evidence from Mr Canning, an Investigator at the Office of the Public Guardian, who told the court that the error of making an LPA purportedly in the name of a donor who lacked capacity was not uncommon. I note that, on making investigations, Mr Canning received no response from the solicitor involved in making the LPA nor from the GP who acted as the certificate provider (who, I should make clear, was not the GP who gave evidence at Court and is no longer a GP at his practice). The making of this LPA was clearly in error: it was invalid, and it has subsequently been removed from the register. However, I accept that the family were given erroneous advice that an LPA was the appropriate mechanism for managing KB’s property and affairs and that they followed that advice in good faith.39.