Summary: The Council has agreed to release details of the late Mr X’s estate to his family to enable an application for probate.

The complaint

1. Mrs A (as I shall call the complainant) complains on behalf of her family that the Council has prevented the release of their late relative’s belongings unless the family applies for probate. She says without sight of his financial papers the family are unable to apply for probate.

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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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I considered the information provided by Mrs A and the Council. Both Mrs A and the Council had the opportunity to comment on an earlier draft of this statement: I made further enquires of the Council following the response to my draft decision.
5. I subsequently made some more enquiries when Mrs A wrote again after I issued a decision. Both Mrs A and the Council had a further opportunity to comment before I reached this final decision.

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What I found

Relevant law and guidance

6. If the person does not leave a will, the most “entitled” inheritor can apply to become the administrator of the estate. This is the closest living relative according to a ‘family tree’ calculation. The Courts decide who will inherit assets if there is no will.
7. The Courts and Tribunal Service Centre advises applicants for probate and has a helpline.

What happened

8. Mr X lived in sheltered accommodation. In March 2020 he died after contracting Covid. Mr X had had ongoing recurrent psychosis and the Community Mental Health Team (CMHT) was involved in his care and support. The Council says Mr X had capacity to make decisions about his care during the time it was involved with him.
9. The Council’s social work team did not have any contact details for next of kin or nearest relatives before Mr X died. The Council says he had told them he had no contact with his family or other relatives.
10. Officers from the sheltered accommodation found the name and contact details of Mr X’s niece in a Christmas card in his flat and passed them onto the hospital where he died. As the niece by then had dementia it was her husband who made the funeral arrangements.
11. The Council’s records show the social worker gave notice on Mr X’s tenancy. She made attempts to contact the DWP about Mr X’s benefits.
12. In September 2020 the manager of the sheltered accommodation contacted the social worker. She said members of Mr X’s family had been asking for Mr X’s personal effects: “The family are requesting personal possessions, bank cards/statement/Will and other belongings”.
13. The social worker spoke to Mrs A. Mrs A emailed the social worker on 29 September to explain the family relationships. She said the family needed Mr X’s documents so they could organise a “decent end” to his life. The social worker explained she needed details of Mr X’s next of kin and she would seek advice from the Council’s legal department.
14. The Council’s principal safeguarding solicitor replied to the social worker’s query about allowing access to Mr X’s effects. She said, “Unless the family members can prove that they are the executors of the service users will or have been granted probate they are not allowed access to anything.”
15. In November the social worker emailed Mrs A again. She said the legal department advised Mrs A would need to apply for a grant of probate or letter of administration to enable the family to deal with his estate (as it was worth more than £5000) and seek their own independent legal advice on how to proceed. She said no will had been found in Mr X’s flat.
16. Mrs A and her cousin (the daughter of Mr X’s brother, who was his next of kin/nearest relative) applied to the Probate Service to obtain the letters of administration to enable the family to deal with Mr X’s estate.
17. In March 2021 Mrs A wrote to the Council again saying they were “back at square one”. She said the Probate Service had told her the family had to estimate the value of Mr X’s estate, including belongings and bank balances less any debts, and then pay any Inheritance Tax due before they could apply for a letter of administration.
18. The social worker replied. She said she had contacted the legal department again and was awaiting more advice. She confirmed that she did not hold any of Mr X’s documents which were all still in storage at the sheltered housing accommodation.
19. Mrs A made a formal complaint which she addressed to the NHS Foundation Trust responsible for the CMHT. She said “We are unable to apply for probate without access to his bank statements etc.  We have also been unable to stop any payments leaving his bank and will be holding the trust liable for any monies lost.  We have been denied items of a purely sentimental value”.
20. In May 2021 the service manager for mental health and older adults wrote again to the legal department asking for “urgent advice about whether we can give the family of a deceased service user their personal affects including their bank statements, etc”. He said “the family only had sporadic contact with the service users when he was alive and he never indicated to the CMHT whether he was happy for the CMHT to share information with family members. The deceased does not have a will nor did he authorise anyone to manage his affairs when he was alive”. He referred to the previous legal advice that without legal authority the CMHT could not give the family Mr X’s personal effects. He went on “The problem is that the family can’t get legal authority without the bank statements, etc. A perfect catch 22.”
21. An officer responded. He said he had checked the probate requirements and the family should not require a bank statement (Mrs A points out this is incorrect information). He said the Council could not intersperse itself between the Court and the family. He said the Probate service had a helpline which the family should use for assistance in applying for letters of administration.
22. The service manager responded to Mrs A’s complaint. He apologised that it had not been possible to resolve the issue in a timely manner. He agreed to consider whether staff training could be provided to support staff in responding to any further examples of what he said was an unusual scenario. He said if there were costs incurred by the estate which could not be recovered he would enquire if the Council could reimburse the costs.
23. On 8 October 2021 the service manager emailed Mrs A to say the Council could not release Mr X’s personal effects or financial information until they had “acquired the appropriate legal authority to administer his affairs”. He said the Council could not disclose information to third parties unless they had the legal authority to administer his estate. He advised them to seek independent legal advice.
24. On 10 October Mrs A responded. She said the Council had led her “a merry dance”, had asked for documentation which it now said was irrelevant, failed to give her timescale for completion of her requests, and failed to have a proper system in place.
25. Mrs A complained to the Ombudsman.
26. The Council said its legal advice remained the same: that the family should seek independent legal advice how to obtain authority to administer the estate. Mr X’s possessions remain in storage at the sheltered accommodation where he lived.
27. Subsequently the Council sought external legal advice about the amount of information it could share. The external advice recommended pragmatism. The Council says that based on that advice, it can now share with Mrs A the information she needs to be able to apply for probate.
28. Mrs A says the delay was entirely the fault of the Council. She says it requested a legal authority which was impossible to obtain without it first giving the family access to details of Mr X’s affairs.

Analysis

29. The Council responded to Mrs A’s complaint appropriately with an apology, and a consideration of service improvements.
30. The Council was entitled to give weight to its legal advice that nothing should be released to the family without the appropriate authority.
31. The Council’s advice remained the same throughout: that Mr X’s family should seek independent legal advice and it was not the role of the Council to intervene between the decision of the Courts and the family about Mr X’s possessions.
32. The Council has since gained external advice which has enabled it to move forward and share the necessary details of M X’s affairs with Mrs A.

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Final decision

33. I have completed this investigation as the Council has responded to Mrs A’s requests. There is nothing further to be achieved by continued investigation.

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Investigator's decision on behalf of the Ombudsman