Birmingham City Council (19 009 772)

Category : Adult care services > Other

Decision : Not upheld

Decision date : 13 Oct 2020

The Ombudsman's final decision:

Summary: Ms X complains the Council was at fault as it failed to provide her with information to help her deal with the administration of her late aunt’s estate. The Ombudsman has found no evidence of fault in the way the Council considered these matters so has completed his investigation.

The complaint

  1. The complainant whom I shall refer to as Ms X complains the Council failed to provide her with information to help her with the administration of her late aunt’s (Ms Y’s) estate.
  2. Ms X says she found it difficult to get information from the Council and this delayed her application for probate. Ms X says it was not until 2019 she was told she needed to apply for administration of probate and the Council transferred Ms Y’s possessions to her. Ms X says the services who deal with a deceased person’s estate do not work together and this should be resolved.
  3. Ms X says she has been caused time, trouble, and distress in dealing with the matter as the Council did not properly advise her in 2016.

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The Ombudsman’s role and powers

  1. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended)

  1. 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

  1. I have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
  2. 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

Legal and administrative background

  1. It is possible for residents in the Council’s area to apply to the Council to act as their Appointee or Court deputy if they find it difficult to deal with their finances. This can be because of dementia, learning disability or mental illness and there is no one else who can do it for them.
  2. If the Council acts as an Appointee, they can receive the person’s state benefits from the Department of Work and Pensions. The Council will set up a bank account for the benefits and use this to help pay a person’s bills.
  3. The Council may arrange a funeral for anyone who dies within the Council’s boundaries when no one else is willing or able to arrange one. This is done by the Funerals and Protection of Property Service. (FPP). The Council can also help protect a person’s belongings and property if they go into hospital or a care home. It helps to protect the property and belongings if it is clear they are at risk or in danger and no other person can act on their behalf.

Deceased process

  1. In 2016 the Council’s Appointee and Court Deputy service used a deceased file procedure to deal with actions arising when it had been an Appointee and the person has deceased. It looks at the funeral arrangements, the assets of the estate, who they should go to, any outstanding liabilities, if there is any next of kin and they have a legal right to make a claim on the estate of the deceased. It looks at whether there are any solicitors involved and if there is a will. The FPP usually arrange funerals unless there is a next of kin to arrange it.
  2. The Council will investigate to find a next of kin where possible using a genealogy research team. It does this in cases where next of kin are known but unwilling to act, there is limited information about a next of kin, the next of kin and deceased have been estranged from each other, there are other possible next of kin but their whereabouts are unknown. In some cases, the Council will ask for a fully documented family tree if there is insufficient evidence produced by the person making the claim. In cases where there is no traceable next of kin the case is usually referred to the Treasury’s Solicitor’s Department in London who will investigate to find out if there is a next of kin. If not, the estate goes to the state.
  3. If the Council traces a next of kin and the balance in the deceased person’s bank account opened by the Council is over £5000, that person must apply for a Grant of Probate at the Probate Registry. This gives the next of kin authority to act in administering the estate of a deceased person.
  4. The Council aims to close the bank account it opened when the person dies but it is not always a straightforward process. The deceased person may have other assets the Council had no control over at the time of death. So, the case can only be closed when relevant information about the additional assets and all the liabilities of the estate have been passed on to the next of kin or the executors of there is a will.
  5. If the account has less than £5000 after paying for the funeral, the Council needs the death certificate of the deceased and evidence confirming the entitlement of the next of kin making a claim.

Key events leading to the complaint

  1. Ms Y rented a Council property and lived on her own. In 2014 the Council became her Appointee, opened a bank account for her and received her benefits. The Council used the bank account to help Ms Y manage her financial liabilities. Ms Y passed away in February 2016.
  2. The FPP found Ms Y left no will and had no next of kin able to arrange a funeral. The FDD acted to cancel Ms Y’s financial liabilities, contacted the benefits service and collect the death certificate. It arranged to put a hold on her bank accounts including the one set up by the Council. The Council arranged to hand back Ms Y’s council property to its housing service.
  3. The Council arranged a funeral service for Ms Y in April 2016 and appointed a genealogy research firm to trace any next of kin based on the limited information the Council held on Ms Y.
  4. The genealogists found and contacted Ms X as a possible next of kin. They advised her of Ms Y’s death, date of funeral and to contact the Council’s FPP service. Ms X contacted the FPP on the day of the funeral to confirm she was unable to attend and she was Ms Y’s niece. Ms X had not had any contact with Ms Y for over 30 years. The Council confirmed it was funding the funeral and would then claim costs back from Ms Y’s estate. The FPP advised Ms X it would release Ms Y’s property to her in due course.
  5. The FPP sent the death certificate and funeral invoice to the Appointee and Court Deputy (ACD) service in September 2016. Ms X contacted the FPP in November 2016 asking whether the funeral cost had been claimed from the estate. The FPP confirmed it had made a claim to the ACD service, but it not been reimbursed.
  6. In 2017 the ACD service dealt with the case under its deceased person procedure. In May 2017, the ACD paid the funeral expense claim. In 2018 the ACD service asked FPP for details of Ms Y’s next of kin. The FPP advised of two nieces, one of which was Ms X. The Council arranged for the genealogy research firm to provide a family tree so it could identify the beneficiary as there were other possible next of kin.
  7. In March 2019 Ms X contacted the FPP saying she wished to claim any property the Council held for Ms Y. The FPP sent Ms X an indemnity form for her to sign so it could release funds and personal items to her if she were the legally entitled person to receive the items. The FPP told Ms X it needed details of her exact relationship to Ms Y.
  8. Ms X returned the signed indemnity form. The FPP told the ACD service Ms X wished to claim any funds from Ms Y’s estate and closed its file on the case. Ms X advised she was a blood relative of Ms X and the other niece was a step niece through marriage.
  9. In April 2019 solicitors acting for Mr Z contacted the Council advising they were looking into other possible nephews and nieces of Ms Y. Mr Z is Ms Y’s nephew and brother to Ms X. Ms X and Mr Z are estranged.
  10. Ms X collected Ms Y’s possessions in April 2019, asked for an update on the estate and value and what she needed to do next. The ACD service asked FPP for an income and expenditure statement for Ms Y. The FPP advised it had been sent in 2016. On officer from the ACD service spoke to Ms X in May 2019. The Council has no details of the call recorded but Ms X then contacted the ACD confirming she would be dealing with probate. Ms X said she was happy to administer within the lines of intestacy (as Ms Y had not left a will) and act jointly with Mr Z. Ms X asked for an update on the original death certificate.
  11. Mr Z confirmed he was happy for Ms X to deal with the administration of Ms Y’s estate but wanted a legal firm to be his point of contact. The officer contacted Ms X in June 2019 apologising for the delay in responding. The officer advised the ACD had the death certificate and Mr Z was being represented by solicitors. Ms X provided an address for the death certificate to be sent to and confirmed she wanted no contact with Mr Z.
  12. Ms X complained to the Council in August 2019 the ACD service delayed in responding to her request for documents and information on Ms Y’s estate since April 2019. Ms X said she considered financial information was missing and being held by the Council. An ACD officer contacted Ms X and advised Ms X she needed to apply for probate as Ms Y’s estate was over £5000.
  13. The Council responded to Ms X’s complaint in August 2019. It apologised for the number of times Ms X contacted the Council and not received a response. The Council said it would discuss this with the officers concerned. The Council confirmed the documents it held, and it keeps these for six years according to its retention policy. The Council confirmed the balance in the bank account it held for Ms Y as Appointee. As the balance of the estate was over £5000 the Council confirmed Ms X needed to apply for probate.
  14. Ms X was legally granted the administration of Ms Y’s estate in August 2019. The value of the estate came to £56000. Ms X complained to the Council again. Ms X said the Council had known she was Ms Y’s next of kin in 2016. Ms X asked why it had taken three years before she had been able to get Ms X’s possessions. Ms X said the funeral had been paid for. Ms X said the Council had not provided the contact details of Mr Z’s solicitors. Ms X said she had started the probate procedure herself due to the lack of response from ACD.
  15. The Council apologised to Ms X for the delay in giving her the contact number for Mr Z’s solicitors. It explained the delay was due to not having details of Ms Y’s next of kin when she died. Ms X remained unhappy at the Council’s response and chased it again in September and October 2019 for the Council to release information. The Council confirmed it was collecting its financial checks and would contact her to complete the case.
  16. The Council paid Ms X £883 in October 2017 being the amount in Ms Y’s Appointee bank account. Ms X questioned a withdrawal of £200 from the account. The Council confirmed it only had access to this bank account for Ms Y used to administer payments for service such as utility bills. The Council said it had no authority to access any of Ms X’s other bank accounts. It advised Ms X to contact the banks concerned for Ms Y’s other accounts. Ms X found the amount was a reclaimed pension overpayment to Ms Y following her death.
  17. The Council sent Ms X a further payment from the bank account it held as Ms Y had been entitled to a refund for some services and now credited to her account.
  18. The Council confirmed the FPP and ACD services were not joint working in 2016. It says the lack of joint working caused some delay in closing Ms Y’s estate and the need for the Council to identify and verify the three beneficiaries of the estate. It says it has reviewed the processes and procedures for dealing with a deceased person following a redesign of the service. The Council now follows a ‘Deceased Checklist’ and this will ensure the two teams work closer together.
  19. The Council could not access some of its documents on the case due to the closure of offices because of COVID-19. So, it has been unable to find any evidence or case notes of any advice possibly given to Ms X in 2016.

My assessment

  1. It is difficult to clarify with any certainty what information or advice was given to Ms X in 2016. I agree it would have been helpful if the Council had advised Ms X then as a potential next of kin what action she may need to take and about applying for probate depending on the value of the estate. Ms X was not in contact with Ms Y or providing care for her, so she was not caused any financial difficulties by not being able to progress matters further. There is no evidence Ms X contacted the Council to pursue matters further between November 2016 until March 2019. So, I do not consider Ms X has been caused any significant injustice to warrant me pursuing matters back to 2016 now.
  2. The Council has limited information about dealing with Ms X’s estate between 2017 and 2018. The Council says this is partly due to establishing and verifying Ms Y’s next of kin. The documents I have seen show it was difficult for the Council because of issues surrounding Ms Y, her family and they had been estranged for many years. There was little information available to the Council when tracing Ms Y’s next of kin and it had to establish other possible beneficiaries. So, I cannot say with certainty the time taken between 2017 and 2018 is due to any fault by the Council.
  3. It is unfortunate it has taken some time to find and verify the beneficiaries of Ms Y’s estate but it was open to Ms X to have contacted the Council between 2016 and 2019 to become involved at an earlier point if she wished. Again, it was also open to Ms X to start the probate procedure herself as she did in 2019 (paragraph 28). The Council has verified information she may have needed to do herself to administer the estate. So, I do not consider Ms X has suffered a significant injustice to warrant me pursuing matters further between 2017 and 2018.
  4. The documents show the Council acted in a reasonable time scale when Ms X made contact again in 2019. It is not always straightforward to resolve the financial matters for a deceased person’s estate. The Council accepted some delays in responding to Ms X from April 2019 to October 2019 when it could close the case. The Council has apologised to Ms X for any delays which I consider is suitable action for it to take. It has also reviewed the service between the FPP and ACD to ensure more joint working which is an outcome Ms X was seeking. I do not consider I can achieve anything further for Ms X.

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Final decision

  1. I am completing my investigation. I have found no evidence of fault by the Council when helping Ms X to deal with the administration of her late aunt’s estate.

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Investigator's decision on behalf of the Ombudsman

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