Summary: Mr X complains the Council failed to deal properly with his brother’s finances while he was living in a Nursing Home. The Council failed to sort out Mr X’s Company pension before he died. This caused problems for Mr X as the Executor of his brother’s estate. The Council needs to apologise and pay financial redress.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to deal properly with his brother’s finances while he was living in a Nursing Home.

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What I have investigated

2. I have investigated events going back to 2014

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
5. 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)

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How I considered this complaint

6. I have:
• considered the complaint and the documents provided by Mr X; and
• shared a draft of this statement with Mr X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

7. Mr X’s brother, Mr Y, lived in care from the 1980s because of mental health problems. Following changes in the law in 2001, the Council became responsible for funding his placement in a Nursing Home. Since then it has managed his finances as a Department for Work and Pensions (DWP) Appointee.
8. Mr Y started receiving Pension Credit from the DWP after he turned 60 in April 2009.
9. On 18 April 2014 HM Revenues and Customs told the Council Mr Y would be eligible for a Company pension when he was 65. On 24 April the Pension Service told the Council the Company pension could affect Mr Y’s eligibility for Pension Credit. In early August the DWP urged the Council to apply for Mr Y’s Company pension. Shortly afterwards, the Council asked the Company to pay the pension to it to help cover the cost of Mr Y’s residential placement. The Company told the Council it would need a letter from a medical practitioner confirming Mr Y could not manage his own affairs.
10. On 28 July 2016 Mr Y’s GP wrote to the Council confirming he could not manage his own finances. On 1 August 2016 the Council sent the Company a copy of the GP’s letter. On 18 August the Company asked the Council for a copy of Mr Y’s birth certificate and to complete a “retirement checklist”, so it could work out how much to pay him. The Council sent the documents to the Company on 14 October. The Company wrote to Mr Y at the Nursing Home asking how he wanted his pension paid. The Council subsequently got a copy of this letter from the Company.
11. On 5 January 2017 the Council received confirmation of its appointment by the DWP as Mr Y’s appointee and sent this to the Company. It says it made the application because it could not find the original appointment document from 2001.
12. Mr Y died on 9 January before the Company could pay his pension to him. He left no will. Mr X became the Executor for his estate.
13. On 12 January the Company asked the Council to provide a copy of Mr Y’s death certificate and details of the Executors and grant of probate so it could pay a lump sum death benefit to his estate. On 19 January, the Council told the Company it could not provide this information but needed to know how much pension would be paid so it could make its own claim on Mr Y’s estate.
14. On 8 February the Company told the Council the arears on Mr Y’s pension due to his estate were £12,913.52, plus a discretionary payment of £10,565.64.
15. On 5 May the Council sent Mr X, as the Executor of Mr Y’s estate, an invoice for £12,912.89 for residential accommodation charges from 1 May 2014 to 9 January 2017.
16. Mr X obtained a grant of probate in June.
17. In November the DWP questioned whether it had paid too much benefit to Mr Y and asked Mr X to provide information about his brother’s finances.
18. In February 2018 the DWP told Mr X his brother owed £2,425.25 in overpaid Pension Credit. This reflected the fact that following the payment of the backdated Company pension, Mr Y’s income was higher than originally taken into account. Mr X subsequently questioned DWP claim that the money should be repaid.
19. Around February 2018 the Council paid Mr Y’s estate £808.65, which comprised his unspent personal expenses allowance and savings disregard. The Nursing Home’s records of Mr Y’s use of his personal expenses allowance show he:
• made cash withdrawals;
• bought tobacco;
• paid for haircuts;
• bought toiletries;
• paid for chiropody.
20. On 13 November 2018 the DWP told Mr X it had decided the overpaid Pension Credit was not recoverable.
21. When the Council replied to Mr X’s complaint in March 2019 it accepted:
• it should not have used Mr Y’s personal expenses allowance to buy a copy of his birth certificate and agreed to reimburse the cost (£9.25) to his estate;
• although trying to act in Mr Y’s best interest, it had acted beyond the scope of its powers as a DWP Appointee when applying for his Company pension. Although the Company had used its discretionary powers to consider the request, the Council should have considered applying to the Court of Protection to be his Deputy for property and financial affairs;
• it knew of Mr Y’s Company pension in 2014.

It did not accept:

• it had withheld money from Mr Y;
• its communications had been insensitive after Mr Y’s death;
• it had continued to act as Mr Y’s appointee after his death by notifying other parties of his death and retrieving his unspent personal expenses allowance from the Nursing Home.
4. The Council apologised and said it would draw up a local protocol for acting as a DWP corporate Appointee.
5. The Council has not paid £9.25 for the cost of the birth certificate to Mr Y’s estate. It put this down to an oversight but says it will pay this money as a priority.

Is there evidence of fault by the Council which caused injustice?

24. The Council accepts it acted beyond the scope of its powers as a DWP Appointee. This reflects the fact that the responsibilities of an Appointee relate to applying for state benefits and spending them in a person’s best interests. When the Council was told about Mr Y’s Company pension it should have considered applying for him to have a Deputy appointed by the Court of Protection. The failure to do so was fault by the Council and contributed to the delay in sorting out the Company pension and the implications this had for Pension Credit. If the Council had acted appropriately it should have been possible to sort this out before Mr Y died over two and a half years later.
25. This caused injustice to Mr X as his brother’s Executor. He first had to sort out the Company pension and then had to deal with the DWP’s request to have money repaid.
26. I cannot say this caused injustice to Mr Y or to his estate. The evidence shows he had access to his personal expenses allowance and was able to spend this. The fact that he did not spend all his money does not mean it was withheld from him. The problems with the Company pension and Pension Credit made no difference to Mr Y. This reflects the fact that the Council is entitled to take account of the Company pension when charging Mr Y for his care. Under the Care and Support (Charging and Assessment of Resources) Regulations 2014, which came into effect in April 2015, councils must leave care home residents with a personal expenses allowance (initially £24.40 a week but now £24.90). Apart from a savings disregard of £5.75 a week and earned income as an employee, councils can usually expect people to contribute the rest of their income towards their care home fees. The regulatory position before April 2015 was broadly the same.

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Agreed action

27. I recommend the Council:
• within four weeks, writes to Mr X apologising for the avoidable problems it caused him as the Executor of his brother’s estate and pays him £300 in financial redress;
• within eight weeks completes the protocol for officers acting as DWP Appointees and identifies any other action it needs to take to ensure it considers applying to the Court of Protection for Deputyship when appropriate.

The Council has agreed to do this.

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Final decision

28. I have completed my investigation as the Council has agreed to take the action I recommended.

Parts of the complaint I did not investigate

29. Because of the restriction in paragraph 5 above, I have not investigated events back to 2001 and Mr X’s complaint about how the Council started managing his brother’s finances without involving his family. The family will have been aware that they were not involved in managing Mr Y’s finances and could have complained about this years ago if they were unhappy about this.

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Investigator's decision on behalf of the Ombudsman