The Ombudsman's final decision:
Summary: Mrs X complained about the way the Council handled the care costs for her mother after she moved into a care home in March 2017. The Council was at fault for not taking action sooner when the outstanding care costs were building up. It has suggested a solution to the outstanding costs issue and should review its processes to prevent recurrence of the fault.
- Mrs X complained about the way the Council handled the care costs for her mother, Mrs M, after she moved into a care home in March 2017. In particular, she said the Council failed to:
- Check whether her brother, Mr B, had a properly executed Lasting Power of Attorney (LPA) that was registered with the Office for the Public Guardian (OPG) when it agreed to liaise with him about their mother’s finances and care costs;
- Make enquiries when it identified £58,000 had been taken from their mother’s bank accounts in the two years before it carried out its financial assessment in September 2017; and
- Take appropriate action when Mr B did not pay the care costs, causing a significant sum of outstanding care costs to build up.
The Ombudsman’s role and powers
- 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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- The events complained about took place in 2017 and 2018. Mrs X became aware of these events in January 2019 but did not complain to us until October 2020. However, she demonstrated she was pursuing the matter with the Council throughout 2019 and until February 2020. As she heard nothing further from the Council after that she assumed the Council was not pursuing the outstanding care costs. This position changed in October 2020 when the Council said it intended to start court action, at which point Mrs X made a complaint without delay.
- I exercised discretion to investigate the complaint from February 2017 when the Council arranged the care for Mrs M because I was satisfied that:
- Mrs X was pursuing the matter with the Council; and
- There should be sufficient records available to enable me to reach robust and defensible conclusions.
How I considered this complaint
- I considered:
- The information Mrs X provided and spoke to her about her complaint; and
- The information the Council provided in response to my enquiries.
What I found
- The Council had some concerns about the safety of Mrs M, who was living on her own after being discharged from hospital. It carried out a mental capacity assessment in late February 2017. The record for this shows Mrs M did not have capacity to make decisions about her care. She understood the need for care in the short term but did not understand the risks should she return home. A best interests decision was made that she should move into a residential care home. The Council arranged the care home in early March 2017 after discussions with Mr B.
- The Council said it would have explained the likely costs of care to Mr B as part of the process of arranging Mrs M’s care as this is its normal practice. It has not been able to provide a record to confirm the advice it gave, which it said was due to the lapse of time since early 2017. It said Mr B told it he was not able to pay a top-up and it advised him to look for a care home with a dementia unit.
- In May 2017, the Council wrote to Mr B to say:
- Funding was approved for Mrs M’s residential care;
- The social worker should have explained that a financial assessment would have to be carried out to calculate Mrs M’s contribution to the care costs;
- If he chose not to provide financial information or if Mr M had savings above £23,250, the funding would be withdrawn and Mrs M would have to pay her care costs in full.
- Said the estate did not accept liability for the outstanding care costs and, irrespective of this, the value of the estate was limited;
- Alleged various failings by the Council, including its failure to check the LPA was valid and a failure to respond to Mrs X in January and April 2019;
- Said Mr B had given the Council inaccurate information about Mrs M’s finances, and had withdrawn money from her accounts, including after her death.
- It had assessed Mrs M as having to pay her care costs in full and provided a breakdown of how the outstanding costs were calculated;
- It had contacted Mr B “on several occasions” in 2017 but “It is unfortunate that no contact was made after this”;
- It was aware Mr B had an LPA but was not aware of other relatives that it could have contacted about the arrears until after Mrs M’s death;
- It was not aware Mr B was taking money from Mrs M’s accounts;
It asked the solicitor to confirm the value of estate and how much could be paid towards the outstanding care costs.
- The solicitor was not satisfied with the Council’s response and wrote again in mid November 2019. The Council responded in February 2020. It referred to its previous response and added:
- There was no evidence Mrs M’s savings would have fallen below £23,250 during the period in question as the capital at September 2017 should have been above £65,000;
- It could not take action against Mr B but if it started court action against Mrs M’s estate, the executors could counter claim against Mr B;
- It did not uphold the complaint.
- raise a safeguarding referral;
- refer the case to the Court of Protection because the attorney, Mr B, had not paid any of the care costs; and
- take legal action in relation to the debt.
It said it has no records of how it considered these actions. It also said it had not been able to take action before Mrs M died due to the volume of other cases being worked through.
- Also, in response to my enquiries, the Council calculated the maximum contribution Mrs M would have made to the costs of her care if she had no savings, as follows:
- From March 2017 £146.73 per week
- From April 2017 £151.66 per week
- From April 2018 £156.09 per week
This means, if the withdrawals by Mr B were not treated as a deprivation of assets, the outstanding care costs would have been in the region of £16,000 instead of £44,000. This sum is still in excess of the value of Mrs M’s estate.
- The Council told me it “fully appreciates how upsetting and difficult a time this must be for [Mrs X and her family] and accepts that there is only £8k+ left in the estate. Considering that we have unsuccessfully managed to get [Mr B] to produce further information/evidence supporting the cash withdrawals we are unable to fully determine whether this was financial abuse or deprivation and the police informed us that there was no criminal case to answer. Both LCC's and [Mrs X’s] options are limited. We would be willing to accept the remaining balance of the estate in full and final settlement”.
- The Council arranged residential care for Mrs M when she was unable to continue living at home. It said it advised Mr B of the likely costs of her care. However, it has not been able to produce a record to show it did so. Therefore, I cannot be sure what information it provided. However, it wrote to Mr B in May 2017 to confirm it would need to carry out a financial assessment to calculate Mrs M’s contribution to her care costs and that if financial information was not provided Mrs M would need to pay her care costs in full. It is not clear whether Mr B was aware of the care costs until he received an invoice from the care home, which he challenged in August 2017.
- On balance, although the Council has not provided a complete record of the costs information it gave Mr B, I do not consider this meets the threshold for a formal finding of fault. In any case, this did not cause an injustice to Mrs M, who understood Mr B was managing her finances, or to Mrs X, who was not involved with Mrs M’s care at that time. I do not consider it likely that a lack of information about the costs initially would have made a difference to whether Mr B paid the care costs throughout 2017 and 2018.
- The Council carried out a financial assessment visit in September 2017. It said Mr B showed its officer the LPA, which Mrs M had signed in 2015. It did not ask for a copy of this nor check it was registered with the Office for the Public Guardian (OPG). It should have requested a copy for its records to confirm Mr B had authority to manage Mrs M’s finances. If it had done so, it would have had details of a second attorney it could have contacted when Mr B failed to pay the care costs. The failure to do this was fault.
- I would not expect the Council to routinely check that LPAs have been registered and, if it had checked, it would have discovered the LPA was registered in November 2015. I have seen no evidence to show it was clear from the LPA document itself that there was anything improper about the LPA. Therefore, even if the LPA was obtained fraudulently as Mrs X suggests, I do not consider the Council was at fault for relying on it.
- The Council identified withdrawals that might amount to a deprivation of assets at the financial assessment visit in September 2017. It asked for further information from Mr B and warned him that Mrs M may be required to pay her care costs in full if it could not complete the financial assessment. Mr B did not provide the information. The Council was not aware, at that point, that the withdrawals had been made by Mr B and that Mrs M may not have been aware of them. Therefore, the Council was entitled to assume there was a deprivation of assets and to require Mrs M to pay the full costs of her care.
- The Council sent regular invoices and reminders to Mr B. Therefore, he was aware that outstanding care costs were building up but did not pay them or contact the Council about them. The Council said it considered various possible courses of action but cannot provide records of any of these and it had not, in fact, taken any action by the time Mrs M died in November 2018. On balance, I consider the Council should have taken action sooner, given that none of the invoices had been paid and the level of outstanding care costs. Its failure to be proactive was fault.
- However, I cannot say whether any action it took would have made a difference to the outcome. This was because the Council had a duty to meet Mrs M’s care needs, which could only be met by care in a care home and this would have to be paid for. Even if Mrs M had paid an assessed contribution rather than the full costs of her care, the outstanding care costs would still have been more than the sum left in the estate. The law and guidance says councils can take legal action to recover outstanding care costs from the estate of someone who has died. Therefore, the Council was not at fault for telling Mrs X it was considering this.
- Mrs M received appropriate care and so was not caused an injustice by the Council’s faults. However, her estate owes a significant sum to the Council and although that may have been unavoidable in the circumstances, this caused stress and worry for Mrs X, which was aggravated by the Council’s failure to respond to her complaints in January and April 2019.
- In response to my enquiries, the Council said it will accept the amount remaining in the estate in full and final settlement of the debt., and this is an appropriate remedy for the injustice caused by the Council’s delays. Whilst I recognise Mrs X is unhappy with this, I can only make recommendations to remedy injustice caused by Council fault. It was not the Council’s fault that Mr B withdrew money from his mother’s account, and I have seen no evidence it was aware that this may have been the case before Mrs M died.
- The Council will, within one month of the date of the final decision, write to Mrs X to confirm it is willing to accept the sum remaining in the estate in full and final settlement of the outstanding care costs.
- The Council will, within three months of the date of the final decision, review its processes to ensure that:
- it always takes a copy of lasting power of attorney documents for its records so it can be certain of the attorney’s authority to act on the donor’s behalf and is aware of any joint or alternative attorneys to contact in the event of a problem with the care costs;
- it is proactive in considering and taking steps where an attorney has not paid the care costs to minimise any outstanding care costs in such cases.
- I have completed my investigation. I have found fault but the Council has made a suitable offer to remedy any injustice caused.
Investigator's decision on behalf of the Ombudsman