Summary: The complaint concerned the care fees due for Ms B’s late aunt. She says that because the issue with the fees was not resolved it was not possible to apply for probate and wind up the estate. She said this caused her, and her parents, who has also acted in pursuing the matter with the Council, distress and time and trouble. There was fault which caused injustice. The Council should apologise and make a payment.

The complaint

1. Ms B complained on behalf of her late aunt Ms X. The complaint concerned the fees for Ms X’s care. Ms B also complained in her own right and behalf of her parents, Mr and Mrs C, who are the executors of Ms X’s estate. Ms B was advised by Mr D. Ms B complained about how the Council handled the fees due from the time Ms X was receiving care. She said that because the issue with the fees was not resolved it was not possible to apply for probate and wind up the estate. She said this caused her, who has also acted in pursuing the matter with the Council, and her parents distress and time and trouble. And Mr D was put to considerable time in advising and assisting in responding to the Council.

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What I have and have not investigated

2. I have investigated matters since January 2021. This is slightly over one year before the complaint was made to us and I consider it a logical point as there was renewed correspondence from that point. I explain why I have limited my investigation in paragraph 15.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’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

6. I considered the complaint and documents provided by Ms B and spoke to Mr D. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms B and the Council and considered their comments.

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What I found

Charging for permanent residential care

7. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
8. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
9. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

What happened

10. In March 2017 Ms X went into residential care. Before that she had received care at home. In May 2018 Ms X died.
11. There was correspondence between the family and the Council over the next three years about the amount that was owed from Ms X’s estate for care fees. In July 2021 the Council carried out what it termed an independent review of the financial assessment. It concluded there had been errors in the previous assessments and that the amount due was just over £5,300.
12. In August 2021 Ms B wrote to the Council. She said the amount due was around the level she expected but the service by the Council had been so poor she considered there should be a full inquiry into all aspects. The Council responded. It said it had set out its final position and Ms B would now need to raise it with us.
13. In the early months of 2022 the Council sent demands to Ms B but posted to the address of her parents (who had previously been dealing with the matter). These demands were for over £13,000 which the Council said was due. Ms B responded in April saying that was not the correct amount and if an invoice for the correct figure was issued it would be paid. The Council replied saying the figure was correct.
14. Ms B complained to us in May 2022. We initially declined to investigate the complaint as we considered it related to matters that happened too long ago and the complaint should have been made sooner. We changed our view when we understood the Council had agreed the amount due was £5,300 in July 2021 but had, seemingly, gone back on that position in its demands and correspondence of 2022. This had not been clear sooner as the Council had not provided a copy of the July 2021 review as had we requested in our initial enquiries.

Analysis

15. I have limited my investigation to events from January 2021 as this was slightly over one year from before the complaint was made to us. This is a logical point as the complainants renewed their correspondence after the Council’s complaint response of August 2020. I considered whether I should, as the complainant wished, extend my investigation to look at earlier events. The Council first said the complaint could be raised with us in its correspondence of November 2019. I understand Ms B and the family wished to reach a resolution with the Council so continued to correspond but the option was there to come to us much sooner.
16. I also considered Ms B’s comments that the Council was not clear that any complaint to us had to be made within a year. We do not expect bodies we investigate to provide details about our jurisdiction. It is complex and we have discretion in some matters. It was clear the matter was not resolved after much correspondence and that was sufficient grounds for a complaint to us. I have not, therefore, investigated earlier events.
17. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations, completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.
18. In early 2021 there was correspondence between Ms B and the Council. In March the Council agreed to review the matter and to put recovery action (for the debt) on hold. The Council issued a review of the assessment in early May (although Ms B did not receive it until June) it then issued a further invoice. The Council then responded to Ms B stating that it was still considering the request for a review. The Council’s action and correspondence over this period was inconsistent and confusing. This was fault.
19. The review in July 2021 reduced the debt significantly. The Council said it would issue revised invoices. Ms B responded in September 2021. The next action was in February 2022 when the Council issued a reminder to pay the sum of over £13,000. This was followed by a further reminder and a threat of court action. This was fault. The Council did not then, and still has not, issued an invoice for the amount it accepted in July 2021 was correct. Also the chasing correspondence was all sent to the Ms B but at her parents’ home when it had been agreed to correspond with her. All this was fault.
20. Following the complaint to us the Council, in May 2023, agreed to apologise, issue the correct invoice and pay the complainants £400.
21. Where there has been fault we look to the Council to provide an appropriate remedy for the injustice that was caused. The fault I refer to above will have caused the family distress and frustration. The only way that can now be remedied is by the Council making a symbolic payment for the distress caused. I have had regard to our guidance on remedies in reaching my view. I recognise the family are seeking a compensatory payment but that is not something we consider. And my recommendation is based on the limited time period I am considering.

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Agreed action

22. The Council will apologise to Ms B following our guidance on making an effective apology. It should also pay her £500. It should complete these actions within one month of the final decision being issued.
23. The Council should provide us with evidence it has complied with the above actions.

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Final decision

24. There was fault by the Council which caused injustice.

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Investigator's decision on behalf of the Ombudsman