Summary: Mr X complained about how the Council managed his late brother, Mr Y’s, finances while it was his court appointed deputy. There was fault in how the Council identified and reported a change of Mr Y’s circumstances which affected Mr Y’s benefits. The Council has offered a suitable remedy for the resulting losses to Mr Y and the distress caused to Mr X, and has reviewed similar cases of others. It also agreed to review how it manages the benefits of people it acts as deputy for.

The complaint

1. Mr X complained about how the Council managed his late brother’s finances while it was his court appointed deputy. He said the Council failed to tell the Department for Work and Pensions when his brother’s circumstances changed or to properly account for payments it made. As a result, his brother received money he was not entitled to and this delayed Mr X’s application for probate. He wanted the Council to refund the management fees it charged his brother and properly account for all the payments made.

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The Ombudsman’s role and powers

2. 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)
3. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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

7. I considered the information Mr X provided and discussed the complaint with him.
8. I considered the Council’s comments on the complaint and the supporting information it provided.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Court of Protection and Deputies

10. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
11. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that cannot be resolved in any other way. The Court of Protection:
• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid, and
• removes deputies or attorneys who fail to carry out their duties.
12. If there is a need for continuing decision-making powers and there is no relevant power of attorney, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys and court appointed deputies and produces detailed guidance for them.
13. If a council is appointed as a deputy to manage someone’s finances, it can charge a management fee. It also needs to pay fees to the OPG and can charge these fees to the person who’s finances it manages.

Attendance Allowance

14. Attendance Allowance (AA) is a benefit paid by the Department for Work and Pensions (DWP) to people over pension age to help with the extra costs of severe disability.
15. Someone is not entitled to AA if they live in a care home which is, or becomes, funded by a council or through NHS continuing healthcare.

NHS Continuing healthcare

16. “NHS continuing healthcare (NHS CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness.” (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012)

What happened

17. Mr X’s brother, Mr Y lived in a care home and became entitled to Attendance Allowance (AA) in late 2010. Mr X is the executor of Mr Y’s estate.
18. In October 2014, the Court of Protection appointed the Council as Mr Y’s deputy, and the Council took responsibility for managing Mr Y’s finances.
19. Mr Y started to receive NHS continuing healthcare (NHS CHC) funding from December 2014 which covered Mr Y’s care home fees. Therefore, Mr Y was no longer entitled to AA and the Council, as Mr Y’s deputy, should have told the Department for Work and Pensions (DWP) about his NHS CHC funding.
20. However, the Council did not realise Mr Y should not have been receiving AA until September 2017, when it got advice about his benefits.
21. The Council told the DWP about Mr Y’s NHS CHC funding in October 2020, at which point Mr Y’s AA stopped and the DWP decided Mr Y had been overpaid AA for the last six years.
22. A few months later, Mr Y died and so the Council could no longer act as his deputy. The Council contacted Mr Y’s executor, Mr X, and told him about the debt to the DWP.

Mr X’s complaint to the Council

23. Mr X complained to the Council about how it had handled Mr Y’s finances. He said the Council should have told the DWP when Mr Y started getting NHS CHC funding and that it should have made other payments for Mr Y sooner than it did.
24. The Council accepted it had made mistakes when managing Mr Y’s finances and offered to:
• refund £1,900 of the fees it had charged Mr Y while it had been his deputy; and
• pay Mr X £500 to recognise the frustration and distress caused by the debt to the DWP delaying Mr X’s efforts to deal with Mr Y’s estate.
25. The Council also said it would review the benefits of other people it was deputy for, to ensure their benefits were correct and it was charging the correct fees.
26. Mr X was not satisfied with the Council’s response, so he complained to the Ombudsman.

The Council’s response to my enquiries

27. In response to my enquiries, the Council reviewed the fees which would have been chargeable if Mr Y had stopped receiving AA when he first received NHS CHC funding.
28. It found that, had Mr Y not received AA:
• he would have been entitled to a 50% reduction in OPG supervision fees. This meant Mr Y had paid £880.62 too much in these fees; and
• he would still have paid the same fees to the Council, since his assets would still have been more than £16,000.
29. However, it recognised it had made mistakes in managing Mr Y’s finances and so it offered to:
• refund Mr Y’s estate £3,616.71, which is half of the total fees charged to Mr Y while the Council was his deputy; and
• pay Mr X £750 to recognise the distress and inconvenience to him.

My findings

30. We cannot normally consider late complaints unless there are good reasons to do so. However, if someone died without knowing something had gone wrong, a complaint is not late if their personal representative complains within 12 months of knowing about the problem. I am satisfied Mr Y did not know he had a reason to complain, and Mr X complained within 12 months of being told about the debt to the DWP.
31. When the Council was Mr Y’s deputy, it was responsible for managing his benefit claims. As part of that role, the council had a duty to tell the DWP about relevant changes in Mr Y’s circumstances. The award of NHS CHC funding was a relevant change.
32. The Council has accepted it failed to tell the DWP about Mr Y’s NHS CHC funding as soon as it realised he was no longer entitled to AA. Although it did tell the DWP, this was three years after it realised.
33. However, the evidence also shows there was a delay of over three years before the Council realised Mr Y was no longer entitled to AA. The Council should have realised it needed to tell the DWP about Mr Y’s NHS CHC funding when he started receiving it, but it did not. This was also fault.
34. These delays meant that Mr Y received benefits he was not entitled to and his estate now owes a debt to the DWP. It also meant the OPG fees Mr Y was charged were too high. While Mr Y’s estate it able to repay the debt, so this will not have a significant effect, this has caused Mr X avoidable frustration and inconvenience.
35. The Council’s latest offer of a refund of fees and a payment to Mr X is a suitable remedy for the injustice caused. The Council also carried out a review of other people form whom it is a deputy, so I am satisfied the Council has taken proportionate action to identify others who might be affected.
36. I have considered the other payments Mr X says the Council paid late and I am satisfied with the Council’s explanations for and the timing of those payments. In any case, any delays in making these payments did not cause Mr Y an injustice.

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Agreed action

37. Within one month of my final decision, the Council will pay Mr Y’s estate and Mr X the sums it offered in response to my enquiries.
38. Within three months of my final decision, the Council will review its procedures for managing the welfare benefits of those for whom it is appointed deputy to ensure relevant changes of circumstances are identified and notified to the DWP promptly.

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Final decision

39. I have completed my investigation. There was fault in how the Council identified and reported a change of Mr Y’s circumstances to the DWP. The Council has offered a suitable remedy for the resulting loss to Mr Y and the distress caused to Mr X, and has reviewed similar cases of others. It also agreed to review how it manages the benefits of people it acts as deputy for.

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Investigator's decision on behalf of the Ombudsman