Summary: Mr C complains the Council delayed in sending a bill for his late brother’s residential care, and for failing to pay back his costs. The Council is at fault for a 12 month delay in completing a financial assessment but there is no fault in how it considered Mr C’s expenses. To remedy the shock, time and trouble Mr C had in receiving a large bill the Council has agreed to apologise and make service improvements.

The complaint

1. Mr C complains the Council delayed and failed to properly financially assess his brother’s, Mr D’s residential care charges. Mr C says the Council also failed to repay him for money he spent on behalf of Mr D.
2. Because of these faults Mr C says he has had financial loss, and time and trouble in liaising with the Council to try and resolve the matter.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I spoke with Mr C and considered information he provided. I made enquiries of the Council and considered its response. I also considered:-
• Care Act 2014 and the associated Care and Support Statutory Guidance;
• Care and Support (Charging and Assessment of Resources) Regulations 2014;
• complaint correspondence;
• case notes, best interest decision, invoices, and financial assessments.

6. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

7. Mr D lived in supported accommodation where he had access to 24 hour care. Mr D did not have capacity to decide where he should live. Following a “best interests” meeting which considered the risks of Mr D living independently and included Mr C, Mr D moved into a care home in October 2022. Mr C says this decision was made by the professionals who were present at the meeting.

What should have happened

8. Regulations issued under the Care Act 2014, set the levels of capital that a person can have to be eligible for financial support from their local authority.
9. Paragraph 8.16 Care and Support Statutory Guidance says “Where a local authority has decided to charge, except where a light touch assessment is permissible……, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. This could be provided alongside a person’s care and support plan or separately, including via online means.”
10. Personal Expense Allowance (PEA), currently set at £24.90, is the weekly amount that people receiving local authority-arranged care and support in a care home (residents) are assumed to need as a minimum for their personal expenses and local authorities must apply this.
11. A personal representative (an executor or administrator) is legally responsible for the money, property and possessions of the person who died. (the ‘estate’s assets’). This includes paying off their debts from the estate assets.
12. Government guidance “Dealing with the estate of someone who's died” says, “When someone dies you should try to contact all their creditors. You should place a notice in The Gazette on their website, the official public record of legal notices in the UK. This will tell creditors they can make a claim against the estate to pay off the debt.”

What happened

13. When Mr D moved into the care home the Council did not consider he had capacity to manage his financial affairs. The Council was already acting as Mr D’s appointee and had access to his state pension. However it had no access to Mr D’s savings or occupational pension.
14. Mr C agreed to apply to the Court of Protection to allow him to become Mr D’s deputy. This would allow Mr C to deal with all Mr C’s finances. Mr C says he gave the care home £30 a week to ensure Mr D had enough money to pay for any added expenses at the care home. Mr C says he also used his own money to buy Mr D clothes. Mr C says he did not know Mr D should have had a weekly personal allowance of £24.90 to pay towards these expenses.
15. Mr D died in June 2022 before the deputyship was granted. It does not appear the Council asked Mr C for financial information until 10 August 2023. Mr C says he did not receive this letter. The Council did not receive a response to this letter and completed a probate search which established Mr C was the executor and had been since 21 November 2022. The Council sent a further letter to Mr C on 27 September who provided the Council with the financial information requested on 1 October. The Council sent out a retrospective financial assessment including the outstanding charge the following day. Mr C appealed the decision because it did not include all his expenses including:-
• money for Mr D’s personal expenses;
• additional clothing for Mr D;
• funeral costs;
• removal costs.
16. The Council in its response to the appeal apologised for the delay and provided an itemised breakdown of how it had calculated the charges and the relevant guidance. It did not however change the assessed charge.
17. In response to my enquiries the Council says Mr C could use an “Allpay card” to buy any items Mr D needed. The Council’s appointeeship section added funds into this account from Mr D’s state pension. The Council says between May 2022 and July 2022 £1460 was withdrawn from Mr D’s account, £400 of which was just after Mr D died. The Council says Mr C was therefore able to access money to meet Mr D’s personal expenses. It also says that it repaid £100 towards Mr D’s removal costs and £3351 directly to the funeral directors. The Council says Mr C would have been aware about care home fees as he was applying to become a deputy to pay the charges.
18. In response to a draft decision statement Mr C has confirmed the Council paid for Mr D’s funeral. He says however that the Council never told him Mr D would have to pay for care but that the Council and charities would meet the cost.
19. The Council disputes this and says it told Mr C generally about the funding of the care home during the assessment process. The Council says it could provide no further detail about Mr D’s charges, as at the time Mr C did not have legal authority to deal with Mr D’s finances.

Is there fault causing injustice?

20. The Council provided Mr C with a cash card. However there is no documentary evidence the Council told Mr C how he could use the money; Mr D’s entitlement to a weekly personal allowance and what Mr C should do if he needed extra money to pay for Mr D’s expenses. The failure to provide this information is fault.
21. Mr C challenges the financial assessment because it does not account for his expenses. The Council did not directly provide Mr D with his personal allowance but did provide Mr C with the means to get money to pay for items Mr D needed. Bank statements evidence regular spending and cash withdrawals. The Council says it paid the funeral directors for funeral expenses and Mr C’s removal costs. The Council has a duty to protect the public purse and collect owed money. It is therefore legitimate for the Council to ask for receipts before repaying Mr C for his additional costs. On this basis, and without contrary evidence, I cannot say there was fault in how the Council considered Mr C’s costs.
22. There is no documentary evidence the Council provided Mr C with information about charges for residential care and took nearly a year to contact Mr C about Mr D’s estate. This delay amounts to fault. The Council should not have allowed the matter to drift.
23. Because of the delay Mr C had the shock of receiving a large bill after he had administered his brother’s estate. He also had time, trouble, and distress in trying to resolve the matter. Given the delay and size of debt I have considered whether to ask the Council to waive some of the outstanding balance owed.
24. I have decided this is not suitable in this case. This is because firstly, Mr D had the benefit, and the Council incurred the cost of providing residential care services. It is therefore appropriate the Council is repaid for these services.
25. Secondly, while Mr C would not have known the exact charge, it is more likely than not he would have had some awareness Mr D would have to pay for his residential care. Paying for residential care is generally known; and Mr C was in contact with several professionals, including Mr D’s social worker and a solicitor, who I believe would have at some point mentioned residential care charges.
26. Thirdly, Mr C acted as Mr D’s executor and ultimately part of his role was to check there were no outstanding debts owed by Mr D and taken the action set out in paragraph 8 above. I therefore consider Mr D could have mitigated his own injustice.

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Agreed action

27. I consider there was fault by the Council which has caused Mr C injustice. I consider the agreed actions below are suitable to improve future practice and to remedy Mr C’s personal injustice.
28. Within one month of the final decision the Council will apologise to Mr C for the time, trouble and distress the Council’s delay in contacting him caused.
29. Within three months of the final decision the Council will:-
1. review and if necessary update processes on the procedure of advising people about charges where the person they are supporting lacks capacity and they have no legal authority to deal with their finances on their behalf;
2. remind staff by a staff circular or team meeting about the importance of recording any advice given about charges;
3. remind staff by a staff circular or team meeting about the importance of providing information about residential care charges to people using the service or those acting on their behalf; and recording when this has been done.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have found fault in the actions of the Council which has caused Mr C injustice. I consider the actions above are suitable to remedy Mr C’s injustice and improve future services. I have ended my investigation and closed the complaint on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman