Summary: Mrs C complains about the Council’s management of her late father’s care home charges. There was delay in providing a full statement of account, and a failure to take action in respect of Mr B’s pension. The Council has agreed to the Ombudsman’s recommendation that it reimburse the £218.00 probate charges, in addition to the £262.07 it has already agreed to write off. It has also put in place measures to improve its management of client accounts.

The complaint

1. Mrs C complains that the Council:
• failed to provide explain the discrepancy in the charges for her late father’s care, or to provide a full final statement. It also failed to advise her of all the charges including those for managing his account. She understands that charges are due but does not have confidence in the Council’s calculations.
• took 18 months to settle the account for her late father’s care. Had the Council kept her late father’s account up to date, he would have had no funds and there would have been no charges for his care, or for probate.
• has failed to explain why it cleared her late father’s Council property of all possessions without allowing the family to recover personal possessions including the remainder of her late mother’s ashes.
• would not allow her and her niece to look after her late father’s financial affairs but instead was itself appointed as Deputy for his property and finance.

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What I have investigated

2. I am investigating the complaints set out in the first three bullet points in paragraph 1 above. I set out in paragraphs 46 and 47 below why I am not investigating the complaint set out in the last bullet point in paragraph 1 above.

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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. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, 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)

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How I considered this complaint

6. I have considered Mrs C’s written complaint and supporting correspondence and discussed her complaint with her. I have made enquiries of the Council and considered its response and supporting papers. I have had regard to relevant legislation and guidance. I have also sent Mrs C and the Council a draft decision and invited their comments.

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What I found

Legal and administrative background

Charging for permanent residential care

7. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their care.
8. People who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
9. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.

What happened

10. Mr B was living in a bungalow in Council-managed sheltered accommodation within the Council’s area. Due to concerns about his welfare, he agreed to move to residential accommodation several hours’ drive from the area. Mr B was deemed to have capacity to make choices about his care and accommodation.
11. Mr B moved into his new accommodation on 30 May 2017. Shortly after, the Council’s Adult Social Care money management team received a referral for Mr B. At this point, the Council was aware of his rental property in the borough and his pension income. It also had photographs of statements of Mr B’s existing bank account which at the time they understood contained around £2,700.
12. Although the referral mentioned that Mr B had family, the Council says he was very clear that he did not wish them to be contacted or involved. A Mental Capacity Assessment was undertaken and concluded that Mr B did not have capacity to manage his financial affairs independently.
13. In November 2017, it was determined that Mr B should remain in permanent residential care. The Council submitted an application to open a new bank account to operate on Mr B’s behalf. Because of Mr B’s lack of capacity, it also applied to the Department for Work and Pensions (DWP) for an Appointeeship to deal with Mr B’s benefits. However, the DWP did not grant this until March 2018, from which point it paid his pension into the new bank account. Once the DWP pension payments started, the Council started paying Mr B’s care home charges from his new account from May 2018.
14. Due to Mr B’s lack of capacity, in June 2018, the Council also submitted an application to the Court of Protection for Deputyship to make decisions on his behalf. The court granted the final order in January 2019. This was communicated to Mr B’s previous bank, the account closed and the balance of around £17,000 transferred to Mr B’s new account in March 2019.
15. On 18 March 2019, the last pension payment was made into Mr B’s account, after which only one further payment for care home charges was made.
16. On 21 May 2019, the Council’s financial assessments team provided an updated financial assessment to the Council’s’ money management team. This set out the weekly client contributions towards Mr B’s care for the 2017/18, 2018/19 and 2019/20 financial years. The Council used a figure of £10,810.90 for Mr B’s capital. It excluded the sum of £8,555.04 from the calculation because it said that Mr B might have to pay back Attendance Allowance to the DWP from the date that local authority funding started on 30 May 2017.
17. The letter advised the recipient (i.e., the money management team) to contact the DWP to ask it to reach a decision on the overpayment required, after which the financial assessments team could review the financial assessment. However, the money management team does not appear to have contacted the DWP because Mr B’s pension payments did not resume.
18. Mr B passed away in November 2019. The Council then settled the outstanding care home charges for Mr B. It undertook a financial assessment of the total care charges he was liable to pay, deducted the amount already paid and sent Mrs C an invoice for the balance of £11,266.31 in January 2020. It also credited the balance of Mr B’s account to Mrs C’s account.
19. In the meantime, after Mr B had passed away, Ms C contacted the DWP in January 2020 about his pension. The Council’s Deputyship had ended by that point. The DWP paid £11,069.20 of backdated pension payments to Mrs C for the period from 25 March 2019 to 17 November 2019. This payment included Pension Credit and State Pension. It also included Attendance Allowance at a weekly rate of £85.60 and then £87.65.
20. Mrs C queried the amount in the invoice. The Council reviewed its figures, agreed that there was a discrepancy, reduced the invoice by £270 and apologised for the error. It also sent Mrs C a copy of all the invoices and financial assessments. Mrs C then complained through the Council’s complaints procedures.

My assessment

Care home charges

21. Mrs C says the Council failed to provide a full final statement of charges, did not explain the £270 discrepancy between the charges and the invoice, and did not advise her of the charges for managing and closing his financial affairs. Although she understands that charges are due, she does not have confidence in the accuracy of the Council’s calculations.
22. Mr B’s care charges were based on his notional income. So, even though his pension payments stopped, the charges were based on his pension entitlement (excluding the component for Attendance Allowance). The £16.65 weekly Deputyship fees were disregarded from the assessment of income. The interim care charges were based on Mr B’s capital being below the lower threshold and so his client contribution was based purely on his income.
23. The Council has provided invoices and details of the financial assessments undertaken. It has also explained the charges for managing Mr B’s finance. But it has not previously provided a full summary of the charges. It has now done so:

Payments made

Homecare £850.13

Client contribution for care home charges £13,553.63

Rent (service charges) – sheltered accommodation £863.68

Deputy fees up to date of court order £745.00

Total payments made £16,012.44

Payments due

Total client contribution for care home charges £24,812.01

Client contribution paid for care home charges (£13,553.63)

Correct balance of client contribution due £11,258.38

(Originally invoiced balance of client contribution £11,266.31)

(Revised invoice following deduction of £270.00 £10,996.31)

Difference between correct balance and invoiced amount £262.07

Final Deputy fees from date of court order £794.22

24. The Council has therefore confirmed that the correct balance due is £11,258.38 rather than the £11,266.31 originally invoiced. However, having previously agreed to reduce the invoiced amount by £270.00 to £10,996.31, it has agreed to write off the difference of £262.07 compared with the actual balance due.
25. I consider this a suitable remedy for the delay in providing a full breakdown of Mr B’s care charges and for Mrs C’s time and trouble in seeking clarification.

Charge for probate

26. Mrs C says that the Council did not contact the DWP when her father’s pension stopped. She also says that, as the care home charges were taken monthly, the Council should have been able to pay the correct sums in a timely manner. Had it done so, her late father’s estate would have been below the Council’s £15,000 threshold for probate and no fees would have been payable. She wants the Council to take steps to ensure that it manages other peoples’ accounts properly in future.
27. The Council says it usually sets up a standing order or direct debit to ensure care fees are paid on a regular basis. However, if a contribution is only assessed as interim or unresolved, as in this case, it will make manual payments to ensure that the available capital is managed in the best way possible. It accepts that, given the outstanding invoice, the balance would have fallen below the threshold for probate. However, it says it could only settle funeral-related expenses after Mr B passed away, so it could not pay the outstanding care charges. It does not therefore consider there are sufficient grounds to refund the £218.00 fee.
28. I see no grounds to criticise the Council for making manual payments towards Mr B’s care charges while these were based on an interim assessment. However, the Council had authority to deal with Mr B’s pension from March 2018 and was appointed Deputy for financial affairs in January 2019. The Council was aware that Mr B’s pension had stopped and that he had continued to receive Attendance Allowance, which it says should have stopped in May 2017. However, it took no action to correct the situation with the pension or to ask the DWP to assess what Mr B might owe in repaying overpaid Attendance Allowance.
29. The Council was receiving a fee for managing Mr B’s financial affairs. Had it taken appropriate steps to reinstate the pension, then the care home charges would have been payable from income and the pension arrears would not have accrued. Moreover, had the Council taken steps to resolve the likely overpayment of Attendance Allowance (which it assessed at £8,555.04 on 21 May 2019 and which would have increased thereafter), the balance on Mr B’s account would have been below the £15,000 threshold for probate.
30. I consider that this was fault on the part of the Council and it should refund the £218.00 probate fee, as this would not have been payable had the Council taken action in a timely manner in respect of Mr B’s pension.

Probate set at £15,000

31. Mrs C considers the Council’s threshold for probate is set too high at £15,000.
32. The Council says it is not aware of any national guidance in relation to this limit. It is mindful that many financial institutions set the threshold for seeking probate at £10,000 to £15,000. It considers a threshold of £15,000 an appropriate level in terms of its liability.
33. The threshold for probate is a matter for the Council to decide.

Charge for managing account

34. Mrs C has queried the charge of £794.22 for managing her father’s account and winding up his affairs.
35. The Council has provided a breakdown of the charges and I see no reason to question this.

Charge for rental of previous property

36. Mrs C has asked why it took 2½ years to issue an invoice for charges for the bungalow where her father lived until April 2017. She has asked why charges would apply when her father’s rent should have been paid from housing benefit.
37. The Council has explained that in November 2017 it was determined that Mr B should remain in permanent residential care and his previous tenancy terminated. The Council’s standard practice would be to terminate the tenancy and settle the arrears on receipt of Deputyship. However, the Deputyship was not finalised until January 2019. There was then a delay in issuing an invoice (for £863.68) until July, when it was paid promptly. The Council has explained that the invoice was payable because the service charge would not be covered by Housing Benefit.
38. There was some delay issuing the invoice, but I do not consider that this has caused Mrs C injustice. I see no fault in the Council seeking payment for service charges not covered by Housing Benefit.

Clearance of property

39. Mrs C says she told an officer in the Adult Social Care Team, who has since left the Council, that there were still personal effects in her late father’s bungalow. She says she waited a month before contacting the Council again but was then told that the bungalow had been cleared out. She says she was unable to recover personal possessions including the remainder of her late mother’s ashes.
40. The Council says there were multiple conversations with Mrs C by members of the Adult Social Care team regarding the flat and clearing it and that everything of value listed by Mr B was taken to him. The Council’s Adult Social Care case notes record the following email from the officer in Adult Social Care to a Housing Officer: “We have recent engagement with his daughter who lives locally and may be able to help with disposing of any personal items left in the property. I have taken everything else to Mr [B] which he listed as being of value”.
41. The Council has explained that the Housing Department was not responsible for the clearance of the property, and it has no record of any discussion about Mrs C’s late mother’s ashes prior to Mrs C’s complaint. Nevertheless, it has apologised for any distress caused.
42. I appreciate that the disposal of the remainder of her late mother’s ashes has caused Mrs C considerable distress. It is also clear that officers in Adult Social Care and Housing were aware that Mrs C might wish to take personal items from her late father’s bungalow. However, I am not now able to determine what was discussed or agreed in terms of arrangements for collecting any personal items, so I cannot make findings on whether there was fault on the part of the Council.

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Agreed action

43. The Council has confirmed that it has put in place additional checks to:
• review all debts with the officers managing cases, upon the receipt of Deputyship Orders; and
• undertake regular meetings to review the debts owed by service users with the team as a whole.
44. It has also agreed that, within one month of the decision date on this complaint, in addition to writing off the £262.07 difference between the correct charge and the agreed invoice, it will reimburse Mrs C the £218.00 probate fees.

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Final decision

45. I have closed my investigation into Mrs C’s complaint as I consider that the agreed actions represent a suitable remedy for the injustice caused to her.

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Parts of the complaint that I did not investigate

46. Mrs C says that she told the Council that she and her niece were willing to look after her father’s affairs, but the Council asked the Court of Protection to appoint it as Deputy for her father’s property and finances.
47. I understand that the family was willing to provide support to Mrs C’s late father, but the Court of Protection had decided that the Council was the appropriate representative for her late father, and the Ombudsman has no jurisdiction to question the decision of the court.

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Investigator's decision on behalf of the Ombudsman