Summary: There is evidence of delay by the Council in sending an invoice. The Council has already offered a satisfactory remedy of this complaint before the complaint came to the Ombudsman by offering a payment plan, an apology and £100 compensation. There is no fault in the Council’s calculation of invoices or asking for direct payments to be repaid in accordance with its policy.

The complaint

1. The complainant, who I shall call Mr X, complains for the late Mrs Y and beneficiaries of her will. Mr X is Mrs Y’s son in law and one of the beneficiaries is his wife. Mr X says he was wrongly asked to sign an assurance that he would refund direct payments paid to a service user when she died as he had no access to the funds.
2. Mr X says that an invoice of 3 April 2019 was wrong as Mrs Y was in hospital from 23 February 2019. He also says the delay in sending an invoice for September to November 2018 has meant the executors have not been able to challenge whether the costs are correct. Mr X is the executor of her estate, but not a beneficiary.
3. Mr X says the Council’s delay in replying to his letters means the estate has been settled and there is now no money to pay the late invoices. Mrs Y’s daughters feel they should be able to claim for the costs of care they gave to their mother over the last 10 years, when the care company did not provide the care.

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What I have investigated

4. I have investigated Mr X’s complaints about the 2018 and 2019 invoices and the form relating to the direct payments. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

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. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
7. 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

8. I read the papers put in by Mr X and discussed the complaint with him.
9. I considered the Council’s comments about the complaint and any supporting documents it provided.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key facts

11. Mrs Y received direct payments from the Council from 2009 for care in her home, with Mr X as the supporter of the direct payments.
12. Mrs Y had a short break stay in residential care from 12 September until 4 November 2018. She went home after this stay.
13. Mrs Y went into hospital on 23 February 2019 and she died on 6 March 2019.
14. The Council sent an invoice for £280 to Mrs Y’s estate on 3 April and a reminder on 24 April 2019. This was for her contribution towards the direct payments and the Council corrected it to £210.
15. The Council sent an invoice for £1423 to Mrs Y’s estate on 18 June 2019 for the short break stay in 2018.
16. Mr X said in a letter to the Ombudsman dated 22 August 2020 that he wound up the estate in October 2019.

My analysis

Direct Payments

17. The direct payment agreement is clear, it says that ‘if you should pass away while receiving direct payments, any unspent funds belonging to the Council will need to be returned’. Mrs Y and Mr X signed the agreement in 2009.
18. The Council has said in a letter dated July 2019 to Mr X that £2971 is due to be returned to the Council, which was the amount left in the direct payment account after Mrs Y died.
19. Mr X says he was wrongly asked to sign this agreement, as he had no access to the funds. The agreement specifically mentions in the event of death that ‘the direct payments support team will support executors of the estate and supporters to complete the repayment of funds’. Given that Mr X is an executor and signed to say that he would support Mrs Y with direct payments (including banking and bookkeeping), I can find no fault in the Council’s actions relating to the direct payments.

2018 invoice

20. The Council has said the delay in sending the invoice for the short break stay in November 2018 was an administrative error. Mr X received the invoice in June 2019, so was aware of the outstanding amount then.
21. I find there was fault on this point, as there was delay sending out the invoice. In response to Mr X’s complaint, the Council offered to reduce the outstanding amount by £100 as compensation for the delay.
22. Mr X has said that given the time that has elapsed, he has been unable to check that the invoice is correct. I have seen the invoice for £1423, which is correct for the charge of £184 per week for the dates Mrs Y was in short break residential care.
23. Mr X says he believes payments of £504 were collected from Mrs Y’s account as a contribution towards residential care. The Council has said that two payments were collected, one for £253 and one for £189, which were the usual charges towards Mrs Y’s direct payments for her care at home. Both of the payments were paid back to Mrs Y on 30 November 2018 as she was in residential care and not receiving care at home. I have seen evidence to support that the refund cheques were cashed. So, I can see no evidence the 2018 invoice is wrong.

2019 invoice

24. The Council has said that it was not aware that Mrs Y was in hospital and so it paid the direct payments as normal. So, the invoice is correct, according to the direct payments made to Mrs Y. In order to adjust the invoice for the contributions towards the direct payments when Mrs Y was in hospital, the Council would need the direct payment contribution for the hospital stay period to be returned.
25. I can find no evidence of fault by the Council, it has said it will adjust the invoice once Mr X returns the direct payments.
26. While I appreciate Mr X’s concerns about the timing of the invoice after Mrs Y’s death, I don’t think there is an agreed time that is acceptable to send invoices after a death. I recognise it is a difficult time and I don’t think the Council’s actions amount to fault. If the Council had delayed, then the executors may not have been able to take it into account when settling the estate.

Conclusion

27. While there was some delay by the Council in sending the 2018 invoice, I can find no evidence that Mrs Y has been wrongly charged, apart from the February 2019 direct payment when she was been in hospital which the Council has said it will correct when the direct payment is returned.
28. The Council has said that if there were no assets available to pay any outstanding debts to the local authority following funeral payments etc, then if Mr X provided the Council with evidence that this was the case, it then may lead to the debt, or part of the debt, being ‘written off’. This would not be the case if the estate has been distributed and there were no funds available to pay the outstanding debt, as debts need to be paid before the estate is distributed.
29. Mr X says he wound up the estate in October 2019 and told me on the telephone he paid about £3000 to the beneficiaries, as well as the amount in the direct payment account. The Council has said that it cannot legally reclaim the money from the beneficiaries. The Council has said the appropriate claim would be a claim against the estate, which the executor would have to respond to on behalf of the estate. The Council is not willing to waive the invoices, however, it would be willing to offer to enter into a repayment plan. 
30. I understand that Mr X wants the Council to write off the debt. However, I do not consider that this is a proportionate remedy to six months delay in sending the 2018 invoice, which is the only point on which I find fault by the Council. The information Mr X gave me indicates that he was aware of the invoice before he wound up the estate and so I do not consider that the delay has led to the funds to be distributed before he became aware of the invoice. I consider that the apology already given, the £100 compensation and the offer of a payment plan, is a satisfactory remedy in this case.

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Final decision

31. I have completed my investigation and uphold Mr X's complaint. There was fault by the Council which caused injustice to Mr X. I am satisfied the Council has taken action to remedy that injustice.

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Parts of the complaint that I did not investigate

32. I have not investigated Mr X's complaint that Mrs Y’s daughters feel they should be able to claim for the costs of care they gave to their mother over the last 10 years, when the care company did not provide the care. I cannot investigate this part of the complaint as the last time Mrs Y’s daughters gave care would have been March 2019. Given the time that has elapsed, I do not intend to exercise discretion to investigate this part of the complaint. I would have expected Mrs Y’s daughters to have enquired about claiming the costs of care they gave in advance of giving it and they would have need to submit records of the dates and times they provided care at the time. This is a late complaint and I have seen no good reason to accept it for investigation now.

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Investigator's decision on behalf of the Ombudsman