Summary: Mrs B and Mrs C complained about the Council’s failure to inform them about an outstanding debt for care home fees or to chase them about the debt. The Ombudsman has not found fault in the Council’s communications except for a delay between February 2017 and September 2018. The Ombudsman has not investigated whether the Council can pursue the debt through the court as this is outside of its jurisdiction and can only be decided by the court.

The complaint

1. Mrs B and Mrs C complain on behalf of their mother, Mrs D, who has passed away. Mrs B’s husband, Mr B is a joint complainant.
2. The complainants say:
• The Council failed to inform them of a debt relating to care home fees after Mrs D died in 2012. The Council did not inform them until 2019.
• The Council never wrote to Mrs B until July 2019 about the debt even though she was Mrs D’s next of kin.
• The debt is statute barred as it is over 6 years old.

Back to top

What I have investigated

3. I have investigated the complaints about the Council’s communications about the debt with the family. Paragraphs 25 and 26 explain why I have not investigated whether the debt is statute barred.

Back to top

The Ombudsman’s role and powers

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 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)

Back to top

How I considered this complaint

6. I have discussed the complaint with Mr B and I have considered all the documents that he and the Council have sent and the relevant, law, guidance and Council’s policies.

Back to top

What I found

Law, guidance and policies

7. The Care Act 2014 came into force in April 2015. Previous legislation has been repealed and the Care Act 2014 replaces all other legislation, guidance and regulations.
8. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties and powers.
9. In 2012, Health and Social Care Act 2001, the Health and Social Services and Social Security Adjudications Act (HASSASSA) 1983 and the Charging for Residential Accommodation Guide (CRAG) set out similar rules
10. I have set out the legislation as it was in 2012.

Capital threshold

11. If a person needs residential care and owns capital above the threshold of £23,250, they may have to pay their own care home fees.

Deferred payment agreement

12. If a person has insufficient income and capital (except for their property) to pay the care fees, the council may offer a deferred payment agreement to people in residential accommodation who meet the criteria. This means that the council will pay the difference between what a person can afford to pay and the full cost and this cost is deferred to a later date. The Council may use a legal agreement and place a charge on the property.

Placing a charge to secure a debt

13. Section 22 of HASSASSA says that, if a person fails to pay an assessed charge for accommodation and has a beneficial interest in land, the Council can put a charge on the property to secure the debt.
14. The Council cannot charge interest on this debt while the resident is alive, but has the power to charge interest after their debt (section 24) until the debt is paid.

Chronology

• March 2009. The Council carried out a financial assessment of Mrs D. Mrs D was a widow. She said she owned a property, although Mr D’s name was on the property deeds. Mrs D nominated her daughter, Mrs C as her next of kin and financial representative. Mrs C did not have a Power of Attorney for Mrs D but was in the process of applying for deputyship for Mrs D and this was noted on the form.
• April 2009. Mrs D moved into the care home.
• April 2010. The Council says it offered Mrs C a deferred payment agreement, but Mrs C never returned the forms. Therefore, the Council applied for a class B charge to be placed on Mrs D’s property under section 22 of HASSASSA. The form noted that Mrs D owned the property. The charge was registered.
• Payments were made towards the care home fees, but not every month. There was also a whole year when no fees were paid.
• 19 December 2011. The Council sent a letter to Mrs C setting out the debt that was due to be paid and the debt that had accrued against Mrs D’s property. The outstanding debt was around £29,000.
• 7 May 2012. Mrs D died.
• 8 June 2012. The Council wrote to Mrs C. It said it was going through the reconciliation of the account and would tell her what the outstanding debt was, once the reconciliation was completed. It asked Mrs C to inform the Council who the executor of the estate was so that the Council could inform them of the final balance.
• 19 July 2012. The Council sent a letter to Mrs C setting out the outstanding balance on the account which was £33,000.
• The family hired solicitors K to handle the probate of Mrs D’s estate.
• 20 March 2013. The Council wrote to solicitors K with a breakdown of the outstanding debt and interest and asked when this would be paid. Solicitors K informed the Council that they were no longer handling the late Mrs D’s estate.
• 10 April 2013.The Council wrote to Mrs C asking her to inform them of the details of the new solicitors.
• 6 June 2013. The Council wrote to Mrs C chasing her for a reply on who was handling Mrs D’s estate.
• 23 July 2013. The Council sent another letter to Mrs C asking her to immediately provide the information it had asked for several times.
• 9 September 2014. The Council sent a letter to Mrs C stating that the outstanding balance was around £33,000.
• 27 July 2015. A Council officer went to Mrs C’s property, but there was no reply at the property.
• 3 August 2015. A Council officer hand delivered a letter to Mrs C’s property asking her to contact the Council. It attached photos of Mrs C’s front door to prove the Council officer had attended.
• 9 December 2015. Mrs B and Mrs C were appointed as personal representatives of Mrs D’s estate. (Personal representatives are the same as executors for estates where the person died intestate).
• December 2015. Another firm of solicitors, firm L, contacted the Council and said they were dealing with the probate of Mrs D’s estate. Solicitors L wanted to know what the outstanding debt to the Council was so that the Class B charge could be removed. The Council assumed that everything was now in order and the debt would be paid, once the property had been sold and the estate distributed. However, solicitors L never contacted the Council again.
• The estate was distributed to the beneficiaries without repaying the Council’s debt first. (It is not clear whether this happened before or after the property was sold). The Council was not informed of the distribution of the estate.
• 29 July 2016. Mrs D’s property was sold. The Council was not informed.
• 16 December 2016. The Council made enquiries with the Probate Registry. The Registry informed the Council about the appointment of Mrs B and Mrs C as personal representatives in December 2015.
• 15 February 2017: The Council obtained the HM Land Registry entry for Mrs D’s property and found out it had been sold on 29 July 2016.
• September 2018. The Council contacted solicitors L. Solicitors L said they dealt with the probate of Mrs D’s estate, but not with the sale of the property.
• 4 July 2019. The Council sent a letter before action to Mrs B and Mrs C threatening court proceedings for the unpaid debt.

The complaint

15. The family complained to the Council in October 2019 and said:
• Mrs D died seven years ago and this was the first communication they had seen about this debt.
• The Council should have been writing to Mrs B as she was next of kin alongside Mrs C.
• The Council said it had been writing to Mrs C but Mrs C had no knowledge of these letters.
• The debt was statute barred as it was over six years old.
16. The Council held a meeting with the complainants and replied to their complaint. The Council’s position was:
• All correspondence was sent to Mrs C as she was nominated as the next of kin on the financial assessment form. Mrs C also told the Council she was applying for deputyship for Mrs D although she failed to do this.
• Mrs C failed to return the relevant paperwork for a deferred payment charge. This led to the Council placing a charge against the property.
• The Council had evidence that it wrote to Mrs C and informed her of the debt on many occasions.
• The family’s solicitor who dealt with the probate contacted the Council in December 2015 to ask what the debt was to enable them to remove the Land Charge. However, after probate, the property was then sold via another solicitor.
• The debt was not statute barred as the Council had taken steps to recover the debt since 2012. It had been unable to make a claim against the estate because of the delays in the probate being granted. Mrs B and Mrs C were the executors of the estate and were jointly liable for the debt as they had not correctly discharged the debt before distributing Mrs D’s estate.
17. The family has further clarified the position regarding Mrs D’s property. The property was unregistered land. When Mr D died, his estate did not go through probate, therefore the property was not in Mrs D’s name when she died. The estate had to go through probate twice, first to transfer it from Mr D to Mrs D and then from Mrs D to her beneficiaries.
18. In its response to the Ombudsman, the Council admitted that there had been delay in its communications as it had not progressed the matter after December 2016 until September 2018. It said the reason for the delay during that time was not known.

Analysis

19. The complainants say the Council did not inform them of the debt after Mrs D’s death or did not chase the debt until July 2019. They also complain that the Council never wrote to Mrs B until 2019.
20. There is a lot of evidence to show that the Council wrote letters to Mrs C and chased the debt. The Council sent the letters to the correct address. A Council officer also attended Mrs C’s address twice and put a letter through the door. The Council also communicated with the family’s solicitor who was dealing with Mrs D’s probate. Therefore, I find no fault in that respect. It is clear there was a lot of communication from the Council to the family about Mrs D’s debt.
21. There was also no fault in the fact that the Council did not write to Mrs B. I have seen the financial assessment form from 2009 and Mrs D had nominated Mrs C to be her representative in terms of financial affairs. She did not nominate Mrs B and Mrs B’s details were not on the form. Therefore, only Mrs C had authority to deal with Mrs D’s finances and the Council was not at fault for not communicating with Mrs B.
22. There was some fault in the lack of communication by the Council between February 2017 and September 2018. At this stage, the Council knew who the executors of Mrs D's estate were, they knew the estate had been distributed without repayment of the Council’s debt and that the property had been sold. There is no clear reason why the Council waited until September 2018 to pursue the matter again.
23. I cannot say if the complainants have suffered any significant injustice as a result of this delay. The delay does not alter the fact that the Council had communicated with Mrs C and the family’s solicitors about the debt before February 2017 so they should have been aware of the debt.

Back to top

Final decision

24. I have completed my investigation. There was no fault in the way the Council communicated with Mrs C about a debt. There was some fault in the delay in chasing the debt.

Back to top

Parts of the complaint that I did not investigate

25. I have not investigated the complaint whether the debt is statute barred. The meaning of ‘statute barred’ is that the lender may have difficulty in taking certain types of action (for example court proceedings) to recover the debt because of time limitations.
26. I have not investigated when the Council could have taken the matter to court or whether the Council can still pursue this debt through the court. Those issues are outside of the Ombudsman’s jurisdiction. They are decisions only a court can make and the Ombudsman is not a court.

Back to top

Investigator's decision on behalf of the Ombudsman