Summary: Ms X complained about the Council’s assessment of her late mother’s (Ms D) residential home charges following an overpayment of Pension Credit. The Council has since carried out a reassessment and accepted it miscalculated the date Ms D was eligible for Council funding. It has agreed to apologise and refund the late Ms D’s estate by the amount she overpaid during her lifetime. This is an acceptable outcome and so we have ended our investigation.

The complaint

1. Ms X complains the Council incorrectly assessed her late mother (Ms D) as being liable for the full cost of her residential care placement sooner than she should have been. This was because the Council, when acting as Deputy, failed to update the Department for Work and Pensions about Ms D’s overpayment of Pension Credit.
2. Ms X is represented by her solicitor, Ms Y, in making this complaint.

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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. 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)
4. 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.

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

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How I considered this complaint

6. I spoke to Ms Y and considered the information she provided.
7. I made written enquiries of the Council and considered its response.
8. Ms 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

Law and guidance

Charging for social care services: the power to charge

9. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)

Mental Capacity Act

10. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Court of Protection

11. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.

Court-appointed Deputies

12. If there is a need for continuing decision-making powers and there is no relevant form of authority, 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 oversees the work of attorneys and court-appointed deputies and produces detailed guidance for them.

What happened

13. Ms D was a resident at a care home, arranged by the Council. As she had capital over £23,250 she was charged the full cost of the placement.
14. In July 2019, the Council was appointed deputy by the Court of Protection. In this capacity, the Council received full disclosure of her capital assets.
15. Ms D was assessed by the Council as still being liable for the full cost of her accommodation up to September 2019. From this date she was entitled to a contribution form the Council towards the cost of her care.
16. Ms D passed away in January 2021. Ms Y was appointed to administer her estate on behalf of Ms X.
17. In April 2022, Ms Y was notified by the Department for Work and Pensions that Ms X had been overpaid Pension Credit in the sum of £6226.
18. Ms Y says the Council should have been aware of this overpayment when it became deputy. Ms Y asked the Council to carry out a reassessment. This led to the Council making a relatively minor adjustment but said it was not responsible for the consequences of the overpaid benefit because it accrued before the Council became deputy.
19. Ms Y made a formal complaint. This was not upheld and so she brought the complaint to the Ombudsman.
20. In response to my enquiries, the Council carried out a thorough review of what happened when it was appointed deputy by the Court of Protection. It found it had incorrectly assessed Ms D as being eligible for local authority funding later than it should have done. This led to Ms D being overcharged by £6585. The Council has agreed to refund this sum to the estate of the late Mrs D.

Analysis

21. I welcome the Council’s acceptance of fault and its proposal to refund the overcharge to Ms D’s estate. I consider this to be a reasonable outcome and the remedy sought by Ms X when she approached the Ombudsman. On this basis, I have ended my investigation.

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Agreed action

22. The Council has agreed to take the following action within four weeks of my final decision.

• Apologise to Ms X.
• Repay the estate of the late Ms D £6585.

23. The Council should provide us with evidence it has complied with the above actions.

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Final decision

24. I have upheld Ms D’s complaint. The Council has agreed to take appropriate action to resolve the outstanding issue. On this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman