Summary: Ms X complained the Council is asking her for payment of unpaid home support and day opportunity charges for a person (Mr Y) in her care because she signed a deed of guarantee in 2012. The Ombudsman has not found fault with the Council’s actions.

The complaint

1. Ms X complained the Council is asking her for payment of unpaid home support and day opportunity charges for a person (Mr Y) in her care who passed away.
2. Ms X says the Council is holding her accountable for these charges as she signed a deed of guarantee in 2012. Ms X says she was unaware of the implications of the deed of guarantee and she never intended to take responsibility for these charges.
3. Ms X says this has left her with a large bill to pay as Mr Y’s estate did not even cover the funeral costs.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
5. 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

6. I have considered the information provided by Ms X and the Council including:
• Complaint correspondence;
• A copy of the financial assessments including the deed of guarantee;
• Council and social worker notes;
• Charging letters, bills and a breakdown of the outstanding balance.
7. The Council accepted the findings from the Draft Decision. Ms X provided comments in response to the draft decision which I considered before reaching my final decision.

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What I found

Charging and Deed of Guarantee

8. The Care Act 2014 says councils must assess anybody in their area who appears in need of care services. Following an assessment, the Council must decide which needs are eligible for their support.
9. The Council must offer a financial assessment to decide who will pay for the support for eligible care needs. The Council should provide clear information about charges and how it assesses them at the time it completes the care needs assessment.
10. Councils can charge for care services. Councils should issue invoices setting out the charges for the care received.
11. The Care Act allows councils to recover adult social care debt including debts arising before the Act coming into force in April 2015. (Care Act 2014, section 69)
12. Norfolk County Council include a deed of guarantee form within the financial assessment pack. A deed of guarantee allows one person, the guarantor, to take on financial responsibility for another person, the beneficiary, in such circumstances the beneficiary cannot pay for the care the Council is providing.
13. Anyone can become a guarantor for someone else, but this agreement must be laid out in writing, signed by the guarantor, the beneficiary (or someone acting on the beneficiary’s behalf) and a witness.
14. A person can apply for the right to deal with the benefits of someone who cannot manage their own affairs because they’re mentally incapable or severely disabled; this is known as an appointee.

Background

15. Mr Y lived with Ms X under the Shared Lives scheme. Mr Y was never determined to lack capacity, but Ms X explained that Mr Y did not understand how to manage his finances and she helped him with this.
16. The Council began a review of Mr Y’s care needs in May 2012. The Council outlined that Mr Y needed full support or supervision at home to meet his needs. This included preparation of food, supervision with dressing and undressing and help with personal hygiene. Mr Y also attended a day service in which he took part in activities and involved in the community.
17. The Council completed a financial assessment with Ms X and Mr Y on 11 June 2012 which identified that Mr X would need to contribute £59.35 per week towards his non-residential care. This financial assessment included:
• Confirmation that Ms X helped Mr Y with his finances and was in the process of becoming his appointee.
• Ms X signed the deed of guarantee which made her the guarantor for Mr Y’s care charges.
• Ms X signed the financial assessment for Mr Y.
• The Council social worker signed the financial assessment and deed of guarantee as a witness.
18. The Council’s social worker’s notes for 11 June 2012 say that Ms X signed the deed of guarantee as Mr Y could not manage his finances. Ms X says the social worker did not explain the implications of the deed of when she signed it.
19. The Council confirmed Mr Y’s care costs to both Mr Y and Ms X on 2 July 2012. Mr Y paid for his care costs by direct debit through a third party’s bank account. This was an arrangement between Ms X and a third party due to limits with Mr Y’s bank account, of whom Ms X was named on. This arrangement did not involve the Council.

What Happened

20. On 16 April 2018, the Council completed a financial assessment of Mr Y’s non-residential care needs and increased the care charges to £94.23 per week.
21. Mr X had two weeks respite in a nursing home in May 2018. The cost of residential care was not previously included within Mr Y’s financial assessment. Mr Y’s minimum income guarantee would no longer apply if he was in residential care.
22. The Council contacted Ms X in December 2018 to advise it needed to complete a financial assessment for the residential care costs. The Council sent Mr Y his bill for respite care of £462.62 on 25 February 2019 following an initial dispute Ms X over the validity of the charges.
23. On 29 August 2018, the bank account for the third party stopped the direct debit to the Council paying for Mr Y’s care costs. Ms X says she was not aware that the direct debit had been stopped.
24. The Council continued to provide non-residential care but did not chase up payment for the charges. The Council sent a bill on 6 March 2019 seeking payment of £2,638.44 for unpaid care charges in addition to the respite care charges.
25. Ms X contacted the Council and asked for a direct debit form so she could restart payment. There is no evidence that Ms X restarted payment. Ms X says she was not aware the direct debit had been cancelled until the Council chased her for payment.
26. After 8 April 2019 Mr Y stopped incurring charges due to continuing healthcare. Mr Y passed away on 17 April 2019.
27. The Council issued a bill to Ms X for the outstanding care charges on 22 May 2019.
28. Ms X contacted the Council to advise that Mr Y’s estate had no money available to settle the balance and provided evidence to the Council. By August 2019, the Council confirmed to Ms X that since she had signed the deed of guarantee she was liable for the final balance owed which it had calculated at £4,166.52.
29. Ms X raised a complaint with the Council. The Council issued its final decision on 28 October 2019. It said the deed of guarantee was completed and signed correctly and as such the Council could hold Ms X liable. The Council directed Ms X to the Local Government Ombudsman.
30. Ms X lodged a complaint with our service on 21 February 2020 and the Council placed debt collection on hold.

Analysis

Deed of Guarantee

31. The evidence shows Ms X signed a form agreeing to be Mr Y’s guarantor in 2012.
32. While Mr Y did not lack capacity, both Ms X and the Council have confirmed that Mr Y could not manage his finances on his own. A lack of understanding from Mr Y would not undermine a deed of guarantee as this was done for his benefit.
33. The evidence does not demonstrate to what extent the social worker provided information to Ms X about what being a guarantor entailed. However, the form signed by Ms X does clearly provide information about what a deed of guarantee includes. I have seen no evidence that would suggest that Ms X could not understand the deed of guarantee she signed.
34. Ms X has raised concerns the position of the deed of guarantee in the financial assessment form has changed since 2012 to make the form easier to understand. The Council has explained the change in the position of the deed of guarantee is due to it merging the residential and non-residential financial assessment forms. While the position of the deed of guarantee form has changed, the form signed in 2012 still explained the purpose of the deed of guarantee and the implications of signing it. I cannot find fault with the Council for Ms X signing this form or making changes to the format of its financial assessment form.
35. A deed of guarantee is a legal document and it is reasonable to expect Ms X to have sought independent advice before signing it if she had any doubts about the implications. Without evidence of fault in how the deed of guarantee was explained or completed, the Ombudsman cannot override the validity of a legal document.

Charging

36. The Council is entitled to charge for the home support and day opportunity provision. The Council has shown that it produced monthly invoices for the charges which fall in line with the financial assessment.
37. The calculated outstanding balance is accurate based on the cost of his provision and the period this went unpaid.
38. The Council is not responsible for the bank stopping the direct debit payments. Any third-party arrangement Ms X and Mr Y had with another person’s bank to pay for Mr Y’s care charges was the responsibility of Ms X and Mr Y.
39. From August 2018 Mr Y still received his state pension and pension guarantee credit but was no longer paying for his home support and day opportunity provision. It is the responsibility of Mr Y, or those acting on his behalf, to manage his finances as appropriate.
40. The Council made Ms X aware of the outstanding balance accruing for Mr Y’s care charges in February 2019. While Ms X may not have been aware of her liability as guarantor she would have been aware that Mr Y owed money to the Council before he passed away. This outstanding balance is valid and owed to the Council by either Mr Y’s estate or Ms X as his guarantor. I cannot find fault with the Council for chasing up payment of a valid outstanding balance.
41. However, there was a six-month delay from both Mr Y taking up respite in the nursing home and the direct debit stopping until the Council contact Mr Y or Ms X about the outstanding balance owed for each. I would expect to see the Council contacting Mr Y or Ms X sooner to request payment for the charges. However, given that this delay is only six months, Mr Y was still alive when the Council made contact and Ms X did not restart the direct debit upon contact I would not consider this delay to be fault of significance.

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Final decision

42. I have completed my investigation as there was no fault in the Council’s decision to hold Ms X accountable for the outstanding balance owed by Mr Y.

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Investigator's decision on behalf of the Ombudsman