Summary: the complainant says the Council failed to properly manage the care costs account of a relative leading to a large debt payable by her family on her death. The Council accepts fault but says its offer of £200 in recognition of the fault addresses any injustice. The Ombudsman finds the Council at fault and recommends a higher payment.

The complaint

1. The complainant whom I shall refer to as Mr X acting as the late Miss Y’s executor complains the Council failed to:
• Properly assess the late Miss Y for financial support to meet her care costs;
• Properly manage collecting those care costs by billing the wrong agency;
• Properly reference and explain the care costs in meetings with Ms Y’s representatives resulting in those representatives being unaware of her responsibility for care costs;
• Properly explain the care charges following Ms Y’s death.
2. Mr X said this resulted in the Council sending him as executor of Miss Y’s estate a bill for the outstanding care costs causing distress and confusion at a time of bereavement. Mr X wants the Council to apologise and cancel the debt. Mr X says the Council’s offer of £200 in recognition of its faults is not enough to address the impact on him and his family.

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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 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

5. In considering this complaint I have:
• Contacted Mr X and read the information presented in his complaint;
• Put enquiries to the Council and studied its response;
• Researched the relevant law, guidance, and policy;
• Shared with Mr X and the Council my draft decision and reflected on comments received before issuing this final decision.
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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What I found

7. Under Sections 9 and 10 of the Care Act 2014 local authorities must carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
8. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
9. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

What happened

10. Miss Y moved into assisted living supported by the Council following the death of her carer in 2014.
11. In February 2016, the Council officer supporting Miss Y set up a service contract to provide the support services she needed. The Council’s financial services contacted Miss Y to gather information to help it complete a financial assessment and decide what contribution she should pay towards her care costs.
12. The Council says it did not receive any response from Miss Y, so it assessed her as being responsible for the full costs of her care services on 2 February 2016. The Council then received a completed financial assessment form from Miss Y’s appointee. The Council assessed Miss Y’s finances using the information provided and decided Miss Y could contribute £75.33 per week towards the costs of her care starting on 21 March 2016.
13. In March 2017 with Miss Y’s family’s agreement the Council applied to the Court of Protection to become Miss Y’s Deputy. On 15 March 2017, the court appointed the Council as Miss Y’s Deputy for property and affairs giving the Council lawful authority to manage Miss Y’s finances.
14. The Council says on its appointment as appointee it should have updated its case management records to reflect the Council now had responsibility for Miss Y’s finances. The Council did not update the record. Therefore, the Council continued to send statements of the care costs to Miss Y’s previous appointee.
15. The Council arranged a Court of Protection Set Up meeting to discuss arrangements with the family in July 2017. However, the Council says it did not discuss with the family the care fees and the contribution the Council would be paying as appointee. The Council has since introduced as a standard item for discussion at any Court of Protection set up meetings entitled ‘discussion of care costs.’
16. Sadly, Miss Y died in 2019. Mr X says within two days of her death the Council sent a bill for unpaid care fees of more than £12,000. When Mr X challenged the Council on the accounts it presented, he says it could not account for a payment of £887. Mr X says he did not know of the arrears or that the Council had failed to properly manage charging for the care costs until this bill arrived.
17. The Council has since introduced a new debt recovery procedure to collect social care charges. The Council says this procedure identities cases where payments are in arrears and proactively engages with customers and representatives to resolve arrears. The Council believes this should prevent a recurrence of what happened in the circumstances of Miss Y’s finances.

Analysis- was there fault causing injustice?

18. My role is to consider whether the Council acted with fault in managing Miss Y’s social care charges. If I find it did then I must decide what the Council should do to put right the impact of that fault.
19. The Council assessed Miss Y’s contribution to her care charges following the correct procedures and considering the information presented by her then appointee in February 2016. I find the Council assessed Miss Y’s contributions without fault.
20. On its appointment by the Court of Protection as Miss Y’s Deputy the Council set up a meeting. However, the Council did not tell the family at that meeting how it would continue to charge and pay for Miss Y’s contributions to her care costs. I find that a fault which denied the family important information. I welcome the procedural improvements the Council has made.
21. The Council admits it failed to have a robust procedure for ensuring it changed the name of the appointee to whom it should send invoices. The Council accepts it did not collect the charges or pay them as it should. I find the Council at fault for these failings. I welcome the improvements made to the procedure for collecting care charges in similar circumstances.
22. In finding these faults I must consider the impact of them. The faults resulted in the family finding out after Miss Y’s death the Council had not properly managed her care costs accounts leaving an unexpected large debt for payment.
23. With no evidence of a fault in assessing Miss Y’s contribution, I cannot say that but for the faults Miss Y or her estate would not be liable for the care costs. Any dispute over liability is a matter only the courts can decide.
24. On Miss Y’s passing the Council recognised it had failed to pay the contributions to its relevant department while acting as Miss Y’s deputy. The Council then sought payment of the large debt from Miss Y’s estate.
25. The Council recognised fault and offered a payment of £200 in recognition of the distress and inconvenience caused. I must consider if the sum offered is enough to recognise the family’s inconvenience and distress.
26. Miss Y, Mr X and the family may reasonably expect the Council to properly manage Miss Y’s affairs as the court appointed Deputy. They may reasonably expect the Council to have in place proper accounting and debt collection procedures that avoid a large debt accruing. The family experienced disappointment and shock at the Council’s failure to meet those reasonable expectations.
27. The family faced a large debt after a loved one had died which had not arisen through any fault of the family. That caused dismay as well as inconvenience.
28. In the Ombudsman’s ‘Guidance on Remedies’ we consider a moderate sum of between £100 and £300 usually enough to recognise the distress, inconvenience and frustration caused to a complainant. In deciding the amount, we recommend, we will consider the severity of the distress, the time involved, and the number of people affected. We will also consider whether the person affected is vulnerable and likely to be more affected by distress than most people.
29. The Council argues the faults did not put Mr X to significant inconvenience or cause severe distress. Therefore, the Council believes the £200 offered is enough to reflect the impact of the debt. I disagree and believe the Council should pay the higher scale payment in our ‘Guidance on Remedies’ of £300. I recommend this sum for several reasons. There remains significant doubt about a payment in the accounts for which the Council cannot offer a satisfactory explanation. The family did not know until after Miss Y’s death she had been responsible for paying a contribution to her care costs. It took too long for the Council to recognise the fault which led to a much greater debt which added to the shock to the family. This added to Mr X’s burden as executor of the estate.
30. Mr X wants the Council to write off the debt because the Council caused it. I understand the view put forward. However, but for the faults in managing Miss Y’s affairs she would have paid her care costs, reducing any estate she would then leave to her family. Therefore, I have not recommended the Council write off the debt. Any dispute over the amount owed would need to be resolved in court.

Recommended and agreed action

31. To address the injustice caused by the faults identified in the investigation I recommend the Council within four weeks of my final decision:
• Makes a written apology to Mr X for the inconvenience and distress caused;
• Pays Mr X £300 in recognition of that inconvenience and distress.

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Final decision

32. In completing my investigation, I find the Council at fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman