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.

The complaint

1. 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:
1. 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;
2. 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
3. Take appropriate action when Mr B did not pay the care costs, causing a significant sum of outstanding care costs to build up.
2. As a result of these failings, Mrs M’s estate now owes the Council a significant sum of money, which is well in excess of the value of the entire estate.

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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 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)
5. 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)
6. 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.
7. 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.
8. 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

9. 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.
10. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

11. 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.
12. 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.
13. 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.
14. Also, in May 2017, the Council contacted Mr C, Mr B’s brother. Mr C confirmed that Mr B was dealing with their mother’s finances.
15. In August 2017, Mr B wrote to the care provider, after receiving an invoice for Mrs M’s care costs. He said he was told the Council was paying the care costs as his mother did not have the funds to pay. He asked the care provider to send the invoice to the Council.
16. The Council wrote to Mr B later in August 2017 to explain the invoice was for Mrs M’s contribution to her care costs, calculated at £489.76 per week. This was on the basis that Mrs M was paying the full cost of her care.
17. A Council Finance Officer visited Mr B to carry out the financial assessment in September 2017. Mr B showed the officer a copy of the Lasting Power of Attorney (LPA) appointing him to act on behalf of Mrs M. The officer did not request a copy of the LPA. The copy I have seen lists two attorneys but there is no record to show the Council contacted the other attorney.
18. The record of the financial assessment visit shows the officer was concerned about a number of large payments made in 2016, which Mr B said were to family members. There was also a payment in early 2017 to purchase a car, which Mr B said was for Mrs M but was in Mr B’s name. The record stated the officer explained to Mr B that Mrs M would need to pay the full costs of her care until full information about these payments and financial statements was provided.
19. Mrs X said the family understood the Council was paying Mrs M’s care fees and Mr B was managing any personal expenses and ensuring she received adequate care. After Mrs M died, she discovered Mrs M had signed an LPA for property and financial affairs in September 2015 and this was registered with the Office for the Public Guardian (OPG) in November 2015. Mrs X considers the LPA was fraudulent.
20. As part of the financial assessment, Mr B sent the Council some copies of bank statements to show the amount of savings Mrs M had. After reviewing these documents, the Council identified a possible deprivation of assets in the sum of £64,000 in November 2017. It asked Mr B to provide statements for all Mrs M’s bank accounts going back two years so it could complete a full audit of all transactions. It said if it did not receive full information “your Mum may be deemed as self funding”. Mr B did not provide the statements. It wrote to Mr B in December 2017 to inform him that in light of the deprivation of assets, Mrs M would need to pay her care costs in full.
21. Mr B did not pay Mrs M’s care costs and arrears began to build up. The Council said it contacted Mr B several times about the arrears by telephone in 2017. It has provided records of telephone calls chasing Mr B about the financial statements but no records of calls about the arrears. It said it did not telephone Mr B in 2018 but did send him 20 invoices, 20 reminders and 20 final reminders during that year. I have seen 14 invoices and 23 reminders/urgent reminders.
22. In November 2018 Mrs M died. At this point the arrears of care costs were just over £44,000. The Council wrote to Mr B in late November 2018. This was a standard letter expressing condolences and stating that any arrears would need to be settled. In mid December 2018 it wrote again to say it had finalised Mrs M’s account and confirmed care costs of £44,162 were owed.
23. Mrs X is an executor of Mrs M’s estate. She contacted the Council as soon as she became aware there were outstanding care costs in January 2019. The Council said it had sent invoices to Mr B every 4 weeks but none were paid. It confirmed the amount outstanding.
24. In late January Mrs X sent an email to the Council raising safeguarding concerns about the way the Council allowed the arrears to build up. The Council’s records show it referred the matter to its finance team but it accepts it did not respond to Mrs X. Mrs X told the Council there was less than £10,000 in Mrs M’s estate and she was liaising with the police about the money she said Mr B had taken from their mother’s accounts. The police later decided not to take formal action due to a lack of evidence to show Mrs M had not agreed to the withdrawals Mr B made.
25. Mrs X complained in April 2019. She said Mr B was selling assets and asked for an update on the Council’s position. The Council did not respond to the complaint.
26. Mrs X instructed a solicitor, who wrote to the Council in mid September 2019. The solicitor:
• 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.
27. The Council responded to the solicitor in mid October 2019. It said:
• 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.

28. 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.
29. In October 2020 the Council wrote to the solicitor to say that as it had not had any response to its February 2020 letter, it was now referring the matter to its legal team to start court action. It also wrote to Mrs X asking her to confirm the solicitor was still acting for her. In response, Mrs X made a further complaint to the Council and also complained to us. The Council responded to the further complaint in November 2020. It apologised for not responding to her email in January 2019 and her complaint in April 2019. Otherwise, it considered it had acted appropriately.
30. In response to my enquiries the Council said it had considered whether to:
• 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.

31. 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.

32. 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”.

My findings

33. 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.
34. 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.
35. 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.
36. 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.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.

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Agreed action

42. 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.
43. 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.

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Final decision

44. I have completed my investigation. I have found fault but the Council has made a suitable offer to remedy any injustice caused.

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Investigator's decision on behalf of the Ombudsman