Summary: Mrs X complained the Council took three years to chase an outstanding balance owed for her mother’s care charges without any notice during this time that the balance was owed. Mrs X says that the estate was disbursed six months prior to the Council’s contact meaning that there is no money available for settlement of the balance. The Council was at fault for the delay in contacting Mrs X about the outstanding balance. I agreed with the Council’s offer to reduce the balance by £1,407.90.

The complaint

1. Mrs X complained the Council took three years to send a letter chasing for a balance owed for her mother’s care charges.
2. Mrs X says since she was unaware of any outstanding balance when she disbursed her mother’s estate there is now no money to settle the balance.
3. Mrs X has also complained the Council sent her correspondence relating to the charges owed by a different resident at her mother’s care home.

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What I have investigated

4. I have investigated Mrs X’s complaint about the delayed production of care charges by the Council.
5. I have not investigated Mrs X’s complaint about the Council sending her correspondence relating to a different resident. The final section of this statement contains my reason(s) for not investigating this part of the complaint.

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The Ombudsman’s role and powers

6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
7. The Ombudsman cannot investigate late complaints unless he decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
8. I decided to use my powers to investigate this complaint from 2016 when the charges were accrued. This is because Mrs X only became aware of the charges in 2019 when the Council issued invoices showing an outstanding balance. I am satisfied it was therefore not possible for Mrs X to have approached the Ombudsman sooner than she did.
9. 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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

10. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
11. Mrs X commented on my draft decision and the Council accepted the draft decision. I considered Mrs X’s comments before making my final decision.

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What I found

12. Section 69 of the Care Act 2014 provides for recovery of debts arising from care home fees which have been paid for by local authorities. Section 69(3)(a) applies to sums that fell after the Act came into force on 1 April 2015. A Council can recover any sum within six years from the date that the amount became due to the Council.
13. The courts clarified in Nottinghamshire County Council v Estate of Mr Wilfred Belton and Mr Ian Belton [2017] that amounts due for care home charges prior to 1 April 2015 were also subject to a six year recovery period as previously applicable under section 56 of the National Assistance Act 1948.
14. The Care Act 2014 gives a local authority the power to start proceedings in the County Court to recover a debt. They should only use this power after other reasonable alternatives for recovering the debt have been exhausted (see section 16 of Annex D to the Care and Support Statutory Guidance 2014).
15. Section 9 of Annex D to the Care and Support Statutory Guidance 2014 states that a local authority should consider whether it is appropriate to pursue any course of debt recovery even when it has the power to do so.
16. Whilst section 6 of the same guidance outlines the following principles when approaching the recovery of debts:
• “possible debts must be discussed with the person or their representative.
• the local authority must act reasonably.
• arrangements for debt repayments should be agreed between the relevant parties.
• repayments must be affordable.
• court action should only be considered after all other reasonable avenues have been exhausted.”

Background

17. Mrs X’s mother moved into a council care home on 22 May 2015. The Council produced a bill for £16,071.43 in October 2015 for care home costs. Mrs X did not pay this bill, disputed it with the Council and complained to the Ombudsman. The Ombudsman opened a complaint under reference 15019554.
18. From November 2015 to June 2016, the Council produced monthly bills of £3,000 per month which Mrs Y paid in full. The Council produced billing for £3,000 in July 2016 and August 2016 which went unpaid.
19. In September 2016, the Ombudsman said the Council had provided incorrect information about the 12-week disregard and required a credit to be applied to the outstanding balance of £3,471.48.
20. The Council produced a credit note for £471.48 in September 2016. This covered the £3,000 monthly care charges from the September 2016 bill. This fulfilled the remedy agreed in resolution to the previous Ombudsman complaint.

What Happened

21. Mrs X’s mother moved out of the care home on 22 September 2016.
22. The Council produced the final bill on 19 October 2016 for £428.57. Mrs X paid this bill. This left a balance owing on her mother’s account of £21,407.90. Mrs X said she was unaware of any balance owed on the account.
23. The Council did not contact Mrs X to follow up on payment of the outstanding balance. The Council said it did not contact Mrs X because it was conducting an internal investigation into the credit note produced on the back of the previous Ombudsman complaint. The Council has demonstrated contacts between its billing team and credit control team from the end of 2016 discussing this matter.
24. Mrs X’s mother passed away on 13 November 2017. Mrs X did not inform the Council as her mother no longer lived in the Council area.
25. Mrs X disbursed her mother’s estate on 22 March 2019. Mrs X did not settle the outstanding balance with the Council prior to disbursement of the estate.
26. The Council wrote to Mrs X on 30 September 2019 advising that £21,407.90 was owed to the Council for her mother’s care home charges up to 22 September 2016.
27. Mrs X requested a meeting with the Council to discuss the outstanding balance and advised she did not receive the July 2016 and August 2016 invoices. The Council agreed to meet with Mrs X on 19 November 2019 and provide the missing invoices.
28. Mrs X delivered a letter to complaint to the Council at the 19 November 2019 meeting. Mrs X complained about the Council taking three years to contact it about the balance owed.
29. The Council responded to Mrs X’s complaint on 11 December 2019. The Council said:
• It had provided feedback to its billing department of Mrs X’s concerns about the wording of the credit note.
• Mrs X could not reasonably have considered the credit from the previous Ombudsman complaint would cover the outstanding balance owed.
• Its credit control team did not contact Mrs X for three years as it was waiting for confirmation from the billing department that the balance was accurate before contacting Mrs X.
• The Care Act allowed the Council to chase a debt for up to six years.
• It updated its system to show Mrs X’s mother had passed away when Mrs X confirmed this in November 2019. This prompted future copy bills to be issued in Mrs X’s name as the executor of the estate rather than her mother’s name.
• It would reduce the balance by £1,407.90, to £20,000, to recognise the distress and uncertainty caused.
30. Mrs X complained to the Ombudsman in December 2019.

Analysis

Charging

31. Following Mrs X’s mother leaving the care home it would have been appropriate for the Council to send a final invoice detailing the balance owed.
32. The Council did not send a final account balance. Instead, the Council only issued an invoice for the final three days of care in September 2016 amounting to £428.57. The failure to issue a final invoice detailing the balance owed is fault by the Council.
33. The credit note issued by the Council in September 2016 is also not clear. This credit note appears to show that Mrs X’s mother’s account was in credit by £471.48. The lack of clarity with this credit note and the ongoing account balance is fault by the Council.
34. Mrs X paid the final invoice and says she was unaware of any remaining balance. The Council’s handling of the account has undoubtedly caused confusion for Mrs X over the balance owed.
35. However, Mrs X would have known about the balance owed of £16,071.43 billed up to October 2015. This is because Mrs X did not make payment for any of this balance and complained to the Ombudsman previously about this charge.
36. The Ombudsman was specific in its previous decision that the Council would credit the account with £3,471.48. I agree with the Council’s statement that Mrs X could not have expected this credit to remove the outstanding balance complained about.
37. Mrs X would also have known the Council was charging £3,000 per month for her mother’s care. This is because Mrs X made payment for this charge every month from November 2015 to June 2016.
38. Mrs X did not receive the July 2016 and August 2016 bills from the Council. However, her mother was still in receipt of the same care until 22 September 2016. Mrs X should have known the Council would charge the same amount in July 2016 and August 2016 despite not receiving the billing.
39. Whilst it seems the Council is at fault, I consider Mrs X would have known about the balance owed. I would not consider this fault by the Council caused a significant injustice as the balance owed is accurate and was charged for the care Mrs X’s mother received.

Chasing up balance

40. The Care Act allows a council to recover debts from care home fees for up to six years. The Council would have had up to 21 May 2021 to begin debt recover action for the earliest care home fees.
41. However, the Ombudsman would expect the Council to try to contact a person about an outstanding balance prior to the legislative limitations on debt recovery.
42. The Council took three years to contact Mrs X about the outstanding balance owed. The Council has advised this delay was because of communication issues between two different Council departments. Communication behind Council departments is the responsibility of the Council. The Council is therefore solely responsible for the delay of three years in contacting Mrs X. This delay is fault by the Council.
43. Mrs X was the executor of her mother’s estate. Therefore, she was responsible for ensuring all her mother’s debts had been paid before disbursement of the estate.
44. The delay by the Council has caused an injustice to Mrs X as she had disbursed the estate prior to contact from the Council. Had the Council not delayed, Mrs X would have been able to settle the outstanding balance either when her mother was still alive or in the 17 months from her mother’s death to disbursement of her estate.
45. Whilst the charge for Mrs X’s mother’s care is legitimate the Council is at fault for the delay and needs to take action to remedy the injustice it has caused. I consider the Council’s offer to reduce the balance owed by £1,407.90 is appropriate to reflect its fault in the circumstances. This is because the balance is valid, Mrs X should have been aware a balance was owed in 2016 and Mrs X was responsible for settling debts prior to disbursement of the estate.

Agreed action

46. Within one month of the Ombudsman’s final decision the Council should:
• Credit Mrs Y’s account with £1,407.90, to reduce the outstanding balance owed to £20,000, in order to remedy the delay in contacting Mrs X about repayment of the balance owed.

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Final decision

47. There was fault leading to injustice. As the Council has agreed to my recommendation, I have completed my investigation.

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Parts of the complaint that I did not investigate

48. I have not investigated Mrs X’s complaint about the Council sending her correspondence relating to a different resident. This matter is fundamentally an issue for the Information Commissioner (ICO). We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended). The Information commissioner deals with complaints about public authorities’ failures to comply with data protection legislation. There is no charge for making a complaint to the ICO and its complaints procedure is relatively easy to use. The ICO is the appropriate body to consider Mrs X’s complaint about this issue.

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Investigator's decision on behalf of the Ombudsman