Summary: Ms X complained the Council delayed sending her an invoice for an estate she was administering as executor. Ms X has settled the estate and does not have the money to pay the invoice. This has caused her distress. The Council is at fault for failing to notify Ms X of the invoice in an appropriate manner and timescale. The Council agreed to apologise to Ms X and confirm in writing it will not pursue the debt.

The complaint

1. Ms X complains the Council delayed sending her an invoice for an estate she was administering as executor, for Ms Y who had passed away. Ms X said she contacted the Council and asked what debts Ms X had outstanding and settled these before distributing the estate. The Council then sent an extra bill two years later. Ms X does not have the money to pay the invoice, this is causing her emotional distress and potential financial distress. She wants the Council to apologise and stop chasing her for the money.

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The Ombudsman’s role and powers

2. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

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How I considered this complaint

5. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant legislation

7. Section 69 of the Care Act 2014 provides for recovery of debts arising from care fees. A Council can recover any sum within six years from the date that the amount became due to the Council.
8. The Care Act 2014 gives a local authority the power to start proceedings in the County Court to recover a debt. They should only use this power after other reasonable alternatives for recovering the debt have been exhausted.
9. Section 9 of Annex D to the Care and Support Statutory Guidance 2014 states that a local authority should consider whether it is appropriate to pursue any course of debt recovery even when it has the power to do so.

What happened

10. I have summarised below the key events; this is not intended to be a detailed account.
11. Ms Y lived in her own home and had a care package.
12. In March 2020, the Council wrote to Ms Y and explained there had been a technical issue with the direct debit system and it could not take payment for Ms Y’s care. It asked Ms Y to contact the Council to pay. The Council said it did not receive a response or payment.
13. Before Christmas, Ms Y went into hospital. The Council suspended her care package.
14. After Christmas, the Council has a telephone record to say a ‘neighbour rang about invoice’ in which the Council informed them about the outstanding balance.
15. Ms Y died at the beginning of January 2021.
16. Two days later, Ms X told the Council of Ms Y’s death.
17. Ms X had Power of Attorney for Ms Y. She told me she had no reason to use it while Ms Y was alive as Ms Y had capacity and dealt with her own affairs.
18. Ms X was also the executor for Ms X’s estate.
19. Ms X completed the ‘tell us once’ notice of Ms Y’s death. This was received by the Council in the middle of January.
20. Ms X said she contacted the Council and asked what care bills were outstanding so she could settle these. In response to my enquiries, the Council told me it sent Ms X a bill in March 2021 for just over £11. In conversation with Ms X, she told me she received a bill for around £11 which she paid. The Council confirmed it received payment by cheque by Ms X at the beginning of September 2021. In response to my enquiries, the Council said this bill was for care provided for the period December 2020 to January 2021. It was not the full amount owed by Ms Y.
21. In conversation with Ms X, she told me she settled all Ms X’s outstanding bills and cleared her debts. After Ms X had settled the debts and administered the legacies, she donated a large amount to charity, according to Ms Y’s wishes.
22. In January 2023, the Council wrote to Ms X enclosing a statement for outstanding fees and charges of over £2,500 for Ms Y’s care and sought payment.
23. In February, the Council sent Ms X a reminder letter about the money owed to it by Ms Y’s estate.
24. The Council spoke to Ms X on the telephone in February about the outstanding amount. Ms X told the Council she had distributed the estate and there was no money left.
25. The Council sent a further reminder letter to Ms X in September.

The complaint

26. Ms X complained to the Council in September 2023.
27. The Council issued a stage one response in October. It referred to a telephone call Ms X made to the Council in late December 2020. In the conversation, the Council said it told Ms X about the outstanding balance owed by Ms Y. The Council said it received notification in the middle of January 2021 that Ms Y had died and it contacted Ms X as executor in January 2023. The Council partially upheld Ms X’s complaint as it accepted it should have contacted Ms X between January 2021 and January 2023 to remind her of the outstanding balance, however it considered the amount was still due.
28. Ms X asked for a review of the complaint and said she did not recall contact with the Council in December 2020 as Ms Y was still alive and in control of her affairs. The Council issued a stage two response in January 2024. It referred to the telephone records which says a conversation took place in December 2020 with Ms Y’s neighbour which discussed the unpaid client contributions for her care. The Councils complaint response said ‘it inferred that that phone call informing you of the outstanding balance did take place…’. The Council said it had changed the telephone system in 2021 and could not access the calls but the ‘case management system indicated that a telephone call took place.’
29. On Ms X’s request, the Council issued a stage three review of the complaint in March. The response copied sections of the telephone records into the letter as evidence. The December telephone note is ‘from neighbour’ but does not name the individual. The January telephone note specified the call was from Ms X. The Council concluded that although Ms X did not receive written confirmation of the outstanding balance until January 2023, she was aware of the outstanding balance as early as December 2020 because of the phone call.
30. Ms X complained to the Ombudsman in September 2024. She said she told the Council about Ms Y’s death, asked for details of Ms X’s debts and settled these before distributing the estate. Two years later the Council sent her a bill for over £2,500 with an apology for the delay. She explained the Council claimed Ms X knew about the bill because of telephone calls in December 2020, but she said she had no knowledge of the calls and only became involved after Ms Y died. Ms X explained there was plenty of money in the executor account after Ms Y’s death until the legacies were paid out and said she would have ‘paid this at the time if I had had any knowledge of it.’ When asked what the Council should do ‘to put things right’, Ms X said she would like the Council to apologise and reassure her they will not expect her to pay the balance.
31. In response to my enquiries, the Council recognised the case recording was not at the expected level and there was a delay in chasing the outstanding debt. It was however satisfied Ms X knew about the outstanding debt owed by Ms Y to the Council.

Analysis

32. The Council wrote to Ms Y in March 2020 about payment for her care as the direct debit failed which it said was a technical issue at its end. There is no evidence to show the Council chased this up after the first letter. The next correspondence with the Council about payment for Ms Y’s care was in late December, when a neighbour of Ms Y called to discuss the outstanding balance. This is nine months of inactivity by the Council, this is delay. The Council could have done more during this time to ensure payment was made by Ms Y and missed the opportunity to set up a payment plan while she was alive.

Statutory guidance and the six-year window for recovery – is it appropriate?

33. The Council can recover debt for care fees within six years of the day the debt was due. The Council acknowledged it knew in January 2021 Ms Y had died and did not write to Ms X until January 2023 about the outstanding amount. This is a delay of two years from the date of Ms Y’s death, or three from when the invoices were first raised. The Council can legally still recover the debt as it is within the six-year legal timeframe as set out above.
34. While this is still within the legal timeframe for recovery, the statutory guidance says before a council takes legal action, ‘it should consider whether it is appropriate to recover the debt.’
35. The Council considered whether it is appropriate to ask Ms X settles the debt in its complaint response. Its decision to pursue the outstanding amount depended on whether Ms X knew about it.
36. The Councils complaint response relies on a telephone attendance note with Ms Y’s ‘neighbour’ from December 2020 in which it told the neighbour about Ms Y’s outstanding debt. The telephone record does not identify the neighbour by name or say how much the debt was. The Council itself accepted that ‘a record of the conversation was made on 29/12/2020 and is lacking specificity’. The Council is at fault for poor record keeping.
37. Ms X said she has no recollection of the phone call in December. Ms X explained while she had power of attorney for Ms Y, she had no reason to use it as Ms Y had capacity and remained in control of her own affairs during her lifetime. Ms X said she had no dealings with the Council about Ms Y’s affairs before Ms Y died. She only became involved after Ms Y’s death, as the executor of her estate.
38. Ms X told me several friends and neighbours visited Ms Y when she was alive. One neighbour did Ms Y’s shopping and helped with bills. Ms X said there could have been many ‘neighbours’ that telephoned the Council in December.
39. We do not know who the December telephone conversation was with, as the record does not specify. Ms X is adamant it is not her. On the balance of probabilities, I consider it more likely than not the telephone record is not a from a conversation between the Council and Ms X. I do not consider it reasonable or appropriate for the Council to rely on this telephone note as evidence Ms X had notice of the invoice. The Council doing so is fault.
40. The statutory guidance says the Council may pursue a debt for up to six years where it is appropriate to do so. Considering the Council attached weight to Ms X having notice of the debt via the telephone call in December, it is at fault for failing to pursue the debt sooner.

Ms X paid the invoice presented by the Council

41. Ms X said she contacted the Council after Ms Y had died and asked for copies of outstanding invoices, including care fees, so she could settle Ms Y’s debts. The Council sent Ms X an invoice for around £11. Ms X paid this invoice and assumed it cleared the debt owed to the Council for Ms Y’s care. I consider this a reasonable assumption to make. Ms X did all she could within her capacity as executor to request invoices and settle debts to discharge her duty as executor. The Council had a clear opportunity to send Ms X copies of all Ms Y’s outstanding invoices, in response to her request. It failed to do so. To demand further payments at this stage is fault.
42. Ms X told me there was money in Ms Y’s estate to have paid the invoice to the Council. After Ms X paid all Ms Y’s debts and distributed the legacies, a large donation was made to charity, according to Ms Y’s wishes. There is no motivation for Ms X to not have settled Ms Y’s debt with the Council.

Summary of fault causing injustice

43. In response to my enquiries, the Council said it told Ms X about the outstanding debt and is satisfied it acted properly. I am not satisfied the Council told Ms X about the outstanding debt within an appropriate timeframe. While the Council records it told a neighbour about the debt on the telephone, there is no way to identify the neighbour or link this to Ms X. Neither did the Council confirm this in writing. There is no compelling evidence to show the Council told Ms X about the £2,500 debt until two years after Ms Y’s death.
44. I do not consider it reasonable or appropriate for the Council to now seek payment. It had opportunity to do so while Ms Y was still alive and in control of her own affairs. It also had opportunity to provide all the invoices when Ms X asked the Council for this, when she was administering the estate. Ms X made the payment which she understood settled Ms Y’s debts in September 2021.
45. From the date the Council first wrote to Ms X in January to following this up in September is a further delay of nine months. This is also delay, this is fault.
46. The Councils request for payments after Ms X finalised the estate has caused her emotional distress as she was worried she would have to pay the money herself. This is her injustice.

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Action

47. Within four weeks of my final decision the Council should:
• Apologise to Ms X for the distress caused.
• Cancel the outstanding debts owed by Ms Y’s estate and confirm this in writing to Ms X.
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman