Summary: The Care Provider continued to receive fee payments from the complainant’s account, after he had died. The evidence indicates this was because of an error by the complainant’s bank. The Care Provider should have repaid the money more quickly, but as this has now been completed, there is no unresolved injustice for the Ombudsman to address here. He has therefore completed his investigation.

The complaint

1. I will refer to the complainant, who has died, as Mr C. Mr C is represented in his complaint by a solicitor, to whom I will refer as Mr D.
2. Mr D complains that, after Mr C passed away, the Care Provider continued to debit funds from his account for several months. After the Care Provider was made aware of this, it delayed refunding the full amount over a period of several months.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)

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How I considered this complaint

4. I reviewed the correspondence between the Care Provider and Mr D.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. Mr C was a self-funded resident in a care home. On 13 October 2018, he passed away. The executor of Mr C’s estate appointed Mr D to act on their behalf.
7. Mr D wrote to the Care Provider on 14 November. He asked it to confirm whether there were any outstanding fees still to be paid on Mr C’s account, or alternatively, whether there were any overpaid fees to be returned to his estate.
8. Mr D says Mr C’s bank was notified of his death on the same date, and asked to cancel all standing orders and direct debits. It later became clear the bank did not do this.
9. On 20 December, the Care Provider wrote to Mr D, enclosing a cheque for £1837.46 in overpaid fees.
10. In March 2019, Mr D contacted the Care Provider after noticing it was still debiting Mr C’s fees from his account. Since his death, it had taken £22,750.
11. The Care Provider repaid £10,000 to Mr C’s estate on 12 April.
12. Mr D submitted a complaint to the Care Provider on 31 May for its failure to repay the remaining amount. On 12 June, he contacted the Ombudsman. At that time, we decided Mr D’s complaint was premature, as the Care Provider had not responded to it.
13. The Care Provider then made further repayments: on 12 June (£3000), 17 June (£2000), 19 June (£1000), 2 July (£1000) and 10 July (£1000). This meant it had repaid £18,000, with a further £4750 left to repay.
14. The Care Provider says it attempted to make a further repayment of £1000 on 6 August, but this payment was rejected and returned to its bank account.
15. After Mr D made further contact with the Ombudsman, the Care Provider responded to his complaint on 27 August.
16. It explained Mr C’s payments had continued after his death because the relevant standing order had not been cancelled until March 2019. It listed the repayments it had made since, and explained about the returned payment on 6 August.
17. The Care Provider asked Mr D to confirm the best way to repay the outstanding £4750.
18. Mr D replied on the same date. He said he had contacted the bank, and disputed there had been a rejected payment. He asked the remaining money to be paid by cheque, and stated he still intended to pursue a complaint with the Ombudsman.
19. The Care Provider replied to reiterate the overpayments had come about because of the failure to cancel the standing order. It said this had caused a “great deal of extra work” and there had been nothing it could do to prevent the money being paid. It confirmed it would shortly send a cheque for the outstanding money.
20. On 28 August, the Care Provider sent a cheque for the outstanding money, clearing the overpayment.

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Analysis

21. Mr D considers the Care Provider is at fault for continuing to take payments from Mr C’s account after his death. The Care Provider says this was out of its control, and the blame lies with Mr D and / or the executor of Mr C’s estate for failing to cancel the standing order.
22. In an email to the Ombudsman on 26 September 2019, Mr D wrote:

“[The solicitors’ firm] notified [Mr C’s bank] that the deceased died on 21st and 27th November 2019 [sic] including the deceased deputy accounts, requesting a stop on all standing orders and direct debits. Further chasing letters were sent to [the bank].

“Sadly [the bank] made an error in not dealing with the deceased deputy account ... I was unaware of the account until [the bank] contacted us to advised that the account was overdrawn which took place on the 11 March 2019.”

23. This being the case, I find it difficult to consolidate this with Mr D’s view the Care Provider is to blame for continuing to debit Mr C’s fees. It appears to confirm it was, in fact, the bank which was at fault.
24. I asked the Care Provider to explain why it paid the money back to Mr C’s estate in instalments, rather than as a lump sum. It said it considered this was most appropriate, as it had received the money in monthly instalments in the first place.
25. I can see no logic in this explanation at all. The Care Provider received the money in instalments, because the transfer had originally been set up as a payment for Mr C’s monthly fees. Its payments to Mr C’s estates, however, were not a fee, monthly or otherwise; they were to return a large sum of money it should not have received. This does not explain why the Care Provider did not simply pay the money back in one lump sum, and I consider it should have done so.
26. However, ultimately, I do not consider there to be any outstanding injustice to be remedied here. The full repayment has been made, which resolves the substantive matter of the financial loss to Mr C’s estate.
27. I accept Mr D was put to time and trouble pursuing the Care Provider for repayment. But his interest in this matter was entirely professional, as the executor’s legal representative. Mr D’s time and trouble was not an injustice to Mr C, or his family.
28. Mr D says Mr C and his family have suffered an injustice, as they are required to pay his fees. However, the Ombudsman will only recommend the repayment of legal fees in the most exceptional circumstances. This is because we do not consider complaints about administrative fault to be so complex as to require professional legal representation.
29. So I cannot recommend the Care Provider compensate Mr C’s family or his estate for this reason, and Mr D has confirmed there has been no other financial impact on Mr C’s estate as a result of the complaint. There is, therefore, nothing for me to recommend here.
30. Mr D says his main concern in bringing this complaint was to protect other bereaved families from similar problems in the future. However, as I have said, Mr D’s own evidence indicates it was the bank which was the source of the problem here, not the Care Provider. There is no reason to suspect the matter will recur.

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Final decision

31. I have completed my investigation with a finding of no injustice.

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Investigator's decision on behalf of the Ombudsman