Summary: The Council gave wrong advice to Mr X about the debt owed by the late Mrs A for her residential care, and as a result he acted to his detriment in distributing her estate. The Council is now seeking to recover the debt through the Courts and the substantive matter is therefore for the Court to decide; however, the Council acknowledges that its error led to injustice to Mr X and will make a suitable payment to recognise the distress caused and the time and trouble he has been put to in pursuing the complaint.

The complaint

1. Mr X (as I shall call the complainant) says the Council told him his late sister-in-law Mrs A did not owe a debt to the Council for her care. As executor of her will he proceeded to distribute her estate on that basis. Ten months later the Council realised that was an error and has sought to recover the £61000 it says Mrs A owes.

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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. If we are satisfied with an organisation’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)
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)

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How I considered this complaint

5. I considered the information provided to me by the Council and by Mr X. Both Mr X and the Council had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

6. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
7. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
8. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person is entitled to access council support to meet their eligible needs. People who have over the upper capital limit are expected to pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

What happened

9. Mrs A was placed by the Council in long term care in October 2018. As she lacked capacity to make her own decisions about her affairs, the Council says it made a referral to solicitors in relation to deputyship. Mr X says he liaised with the solicitors regularly. He says there was no contract in place for Mrs X’s care and no fees were paid during that time.
10. Mrs A died in October 2020. Mr X was executor of her estate. Mr X asked the Council if there was any outstanding debt owed by Mrs A for her care. The Council assured him in writing there was no debt outstanding. Mr X distributed her estate.
11. In August 2021 the Council discovered there was an error in the information it had given to Mr X. It issued a financial assessment to Mr X so it could calculate the amount owed by the late Mrs A. Mr X did not return the completed assessment and the Council concluded Mrs A had been liable for the full amount of the care costs. In September it sent Mr X an invoice for £61, 751.
12. Mr X complained to the Council in September 2021.
13. The Council did not respond until April 2022. During that time the Council’s legal department continued to pursue Mr X for the money it said was owed. The Council then apologised for the delay in replying to the complaint. It said, “due to an internal error (Mrs A’s) social worker was incorrectly advised on 19th October 2020 that no outstanding balance was due in connection with (Mrs A’s) residential care”. It “sincerely apologised” for the mistake. It said because Mrs A “benefited from the provision of residential care, WCC has a discretion pursuant to the Care Act 2014 to seek full reimbursement for the costs associated with the care”.
14. Mr X complained to the Ombudsman. He said the Council had been silent about the fact there was no contract in place with anyone for Mrs A’s care. He said he had been told “unequivocally” there was no outstanding debt owed by Mrs A to the Council, based on which advice he had distributed the estate in line with his duty as the executor of the will. He said the Council then appeared to believe it was acceptable to say there had been a mistake and seek to recover the debt it said was owed.
15. The Council issued a letter before action on 23 June 2022.

Analysis

16. The Council acknowledges it gave Mr X the wrong information. Mr X distributed the estate on the basis of that advice.
17. The Council delayed a further 10 months before it wrote to Mr X admitting it had been wrong in the information it had given to him.
18. The Council responded belatedly to Mr X’s complaint accepting its error but indicating its intention to pursue recovery.
19. The Council has now issued a letter before action. The substantive matter about repayment is therefore one for the Court to decide if the Council proceeds with its action but I can consider the Council’s action up to that point.
20. There was fault on the part of the Council which led to injustice to Mr X.

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Agreed action

21. Within one month of my decision, the Council will make a payment to Mr X of £1000 acknowledging the distress and anxiety its actions in giving the wrong information have caused;
22. It will also make a payment of £1000 which recognises the additional anxiety caused by significant delay in responding to the complaint, while it continued to issue reminder invoices;
23. It will also make a payment of £250 to recognise the time and trouble Mr X has been caused in pursuing this complaint which would not have been necessary if the Council had acted without fault in the first place.

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Final decision

24. I have completed this investigation and found there was fault on the part of the Council which caused injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman