Summary: We will not investigate this complaint about the Council charging the late Mr B for care, his son, Mr C, says he did not agree to pay. This is because it will be for the executor or administrator of the estate to defend in court if necessary any charges they do not believe Mr B owes.

The complaint

1. Mr C says his late father, Mr B, did not agree to pay for his care. Mr C says no one advised Mr B he was able to apply for Attendance Allowance, the care Mr B received from his care provider was poor, as was communication with the Council. Mr B says due to financial abuse Mr B may not have enough money in the estate to pay for care but at the moment he does not know what monies will be available because he is still in the process of applying for Probate.

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The Ombudsman’s role and powers

2. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council responded to Mr C’s complaint in July 2022. It said safeguarding concerns had previously been considered in 2021 and any new concerns now raised could not be considered as it no longer commissions care from the provider. Further investigation by us could not add to this or make a different finding of the kind Mr C wants. We could not now provide Mr B with a remedy for any injustice caused by fault which might be uncovered during an investigation because he is deceased.
7. The Council has explained Mr B was not in receipt of Attendance Allowance and this was not included in the financial assessment. Mr B paid a contribution towards his care which would have increased to include Attendance Allowance if Mr B had received it. We could not add to this point or make a different finding even if we investigated.
8. Mr C says the Council has not provided all the information he requested under a Subject Access Request (SAR). Mr C can ask the Information Commissioner’s Office (ICO) to consider his request for the documentation the Council is refusing to give him and it would be reasonable for him to do so.
9. Mr C says due to financial abuse and delays in gaining access to probate there may not be enough money to pay the invoices. The Council has explained if the estate is insolvent Mr C will not be responsible for the debt. Mr C will need to advise the Council and provide the evidence of insolvency when he receives this information.
10. The Council has provided a statement of what the outstanding balance comprises of and informed Mr C about the outstanding debt at the date Mr B died.
11. It is the responsibility of the executor to collect the assets, pay any debts and use the resulting balance to distribute to any beneficiaries.
12. If Mr C as Mr B’s administrator disputes the existence of a particular debt he can refuse to pay and defend any court proceedings against him.

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Final decision

13. We will not investigate Mr C’s complaint because it will be for the executor or administrator of the estate to defend in court if necessary any charges they do not believe Mr B owes.

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Investigator's decision on behalf of the Ombudsman