Summary: There was fault by the Council. It did not review Mrs B’s care plan or advise her, or her family that she was not entitled to housing benefit (HB) to pay the rent of her flat while she was in residential care. The Council’s shortcomings mean Mrs B incurred a debt she may have otherwise avoided. The Council has made improvements to how it handles these situations. It agreed to refund the amount of overpaid HB to Mrs B’s estate.

The complaint

1. Mr Y complains about how the Council dealt with his late mother, Mrs B’s tenancy and housing benefit when she was admitted to hospital and then to a care home. In particular he says the Council failed to:
• maintain an up to date Care Plan for his mother;
• make sure that his mother’s tenancy and benefit issues were attended to so that her tenancy was ended or HB paid in her absence; and
• ensure that the different teams communicated properly.
2. As a result, Mrs B’s tenancy was not terminated, the HB section did not know she was not living at home, and the Council has asked for a large HB overpayment to be repaid by her estate.
3. Mr Y says that as a result of the Council’s failings he has had no time to grieve and the Council’s actions have caused him distress.

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The Ombudsman’s role and powers

4. 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 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. We considered the information provided by Mr Y and discussed the issues with him. We considered the information provided by the Council including its file documents. Both parties have had the opportunity to comment on a draft of this statement.

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What I found

The law and guidance

7. HB is administered by councils to help people on a low income to pay rent. Usually the person must be living in the property to claim HB. However, a person may still be entitled to HB when they are not living in their home if they intend to return and the time away from home is within certain limits. The person must intend to return home and be able to return home.
8. The person may be away from home but still receive HB for up to 52 weeks if they are in hospital or staying in a care home on a temporary basis.
9. If the person is in a care home on a trial basis to see if it is suitable for them, they are only entitled to HB for 13 weeks. After 13 weeks, the person would need to pay the rent or end the tenancy.
10. Under section 117 of the Mental Health Act, Councils and the NHS have a duty to provide or arrange free aftercare for people who have been detained under the Act (commonly referred to as ‘sectioned’)
11. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
• because he or she makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
12. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. If a council decides a person does not have capacity they may make that decision for them provided that is in that person’s best interests.
13. If there is a conflict about whether a person has capacity to make a decision or whether a decision made for them is in their best interests, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
14. If there is a need for continuing decision-making powers, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf.

The Ombudsman’s jurisdiction and overpayments of HB

15. The Social Entitlement Chamber (also known as the Social Security Appeal Tribunal) is a tribunal that considers HB appeals. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would have been unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
16. I have decided that it would not have been reasonable to expect Mr Y to appeal the Council’s decision that his late mother’s overpaid HB must be repaid. He has been grieving the loss of his mother, and the problems he has encountered flow from how the Council handled Mrs B’s care planning, which is within the Ombudsman’s jurisdiction.

What happened

17. Mrs B had been living in a rented property and she claimed HB as she was on a low income. Mrs B became ill in November 2017 and was admitted to hospital under the Mental Health Act. She was first transferred to a different hospital and then moved into a care home, leaving her rented home. Mrs B moved to the care home on 21 May 2018.
18. Throughout her stay at the care home, Mrs B intended to return to her home. However, the social worker (SW) and other professionals considered that this would be very risky. The Council completed Mental Capacity Assessments (MCAs) to see whether Mrs B was able to decide these issues for herself. The Council says overall Mrs B’s capacity was borderline. This made it difficult for the Council to start the legal process that would allow it to make these decisions for her as her deputy.
19. Eventually the Council decided that it could apply for deputyship but sadly, Mrs B died before this process could be completed.
20. When Mrs B died, her family told the HB department. The Council’s HB team had not known that Mrs B had been living in the care home. The Council decided that although Mrs B wanted to return home, the risks to her if she did meant that she would never have been able to. This meant she was not entitled to HB for up to 52 weeks when she lived in the care home and her HB should have stopped when she moved there in May 2018.
21. The Council had overpaid HB and demanded that Mrs B’s estate pay back over £3,600 of overpaid HB between 28 May 2018 and 21 April 2019, the day she died.
22. Mrs B’s son, Mr Y complained that the Council did not help his late mother to organise her finances, or end her tenancy and that the overpayment could have been avoided.
23. The Council acknowledges that a planned review did not take place when Mrs B’s case was transferred to the team that would help her in the care home. This meant that the Council did not review whether and how Mrs B would end her tenancy. The Council’s SW did not understand that the 52 week period when Mrs B could receive HB on both her care home and her vacated tenancy would start from when Mrs B was admitted to hospital, not when she moved to the care home.
24. Mrs B was deemed to have capacity to make decisions, but the Council acknowledges that it did not review her tenancy details and did not support her to notify the HB service that she intended to return to her rented property. In its complaint responses the Council refers to the Benefits Agency when HB is administered by the Council. The Council accepts that Mr Y raised concerns about the HB and his mother’s tenancy in October 2018, but it did not address these.
25. The Council upheld Mr Y’s complaint that there was no updated Care Plan, Review or Transfer Summary detailing the tenancy issue and timescales for HB to end, prior to the move to the care home.
26. However, the Council did not uphold that it should not seek to recover the overpaid HB. It said that this is not paid for as part of aftercare under the Mental Health Act. The Council says Mrs B was not liable for care fees and so would have accumulated capital when the 52 weeks of HB ended. It also says that it has no discretion and the HB overpayment must be repaid.
27. The Council told Mr Y that it had improved its care plans and what happens when people move, and it will monitor whether these changes are effective. At the point of transfer between social work teams, unless there is an updated Care Plan the transfer will not be accepted by the receiving team.
28. The Council told Mr Y that it would have been better had it not transferred responsibility for dealing with his mother’s situation when she moved to hospital and the home, so that one team was responsible for Mrs B throughout. That way it could have addressed the tenancy and HB issues at the time. It has reviewed how it handles transfers between teams.
29. The Council also changed the information it holds when people move from a tenancy to a care home so that the Council can be clear about how much longer a person may be able to claim HB on a house they are not currently living in.
30. In response to my investigation the Council has confirmed its position. It says:
• It accepts that there was a delay in supporting Mrs B to resolve her tenancy issues and missing information in its records meant the SW did not appreciate the HB issues. More robust action earlier could have reduced the overpayment of HB.
• However, Mrs B may still have chosen not to take up the advice. It could only give advice until it was established that she lacked the capacity to make her own decisions about housing and finances.
• It had completed MCAs. These suggested that Mrs B had borderline capacity to make decisions about her care and accommodation, but not always. Mrs B was very consistent however, in that she wanted to return home, despite the risks of harm to her if she did. The conflicting MCAs meant the Council did not immediately apply for deputyship. It would require this to end her tenancy on her behalf.
• It was in March 2019, that the SW established that Mrs B did not have the capacity to make a decision about where she should live. The Council intended to apply for deputyship then, but sadly, Mrs B died before it could do so.
• Normally a SW would address tenancy issues when the care plan was reviewed, around four to six weeks after Mrs B had moved to the care home, but this did not happen
• This case has highlighted that SWs are potentially not fully aware of how HB entitlement is impacted by moving to residential care.
• Mrs B’s estate did not suffer any injustice because had HB not been paid then rent arrears would have accrued and Mrs B’s estate would have been liable for these instead of the outstanding rent arrears.

Was there fault by the Council causing injustice to Mrs B?

31. The Council is correct to say it cannot fund the rent as part of Mrs B’s mental health after care. Funded aftercare can include accommodation, but this is the accommodation the person is living in. In Mrs B’s case this was the residential home and it was funded for her.
32. The Council has acknowledged that there were delays in allocating a SW when Mrs B transferred to the home, and that the care plan was not reviewed as intended. The information transferred to the team did not capture that there was a tenancy issue to resolve, and so this was not addressed. The Council has also acknowledged that Mr Y raised the issue with it, and it missed the opportunity then to deal with the tenancy and the HB. The Council did not advise Mrs B or her family of the situation with her HB or tenancy and this was fault.
33. The Council’s fault meant that Mrs B and her family could not make an informed decision or seek further advice about the situation.
34. I also have to consider whether, had the Council acted properly, then Mrs B would have avoided the debt. The Council has put forward several reasons why the overpayment is recoverable from Mrs B’s estate, and why she would have had this debt even if the Council had not made mistakes.
35. The Council says it could not take any action on Mrs B’s behalf because overall, she was deemed to have capacity to decide her care and accommodation. This meant the Council could not make a decision in her best interests, or apply for a deputyship. I have seen the Council’s assessments and there are no clear flaws in how it conducted these. It describes that Mrs B’s capacity was borderline: some assessments concluded she did not have capacity and some that she did. The Council was entitled consider the MCAs and to conclude that Mrs B had capacity to make decisions about her care and accommodation until the later months.
36. I agree that this means the Council could only give advice to Mrs B. The Council says she may not have taken the advice, particularly as she had always said she wanted to return home. The Council says this means we cannot be sure that she would have avoided the overpayment or rent arrears, even if it had not made mistakes. I am not persuaded by this. Had Mrs B known that she was not entitled to HB while living at the home, or had the Council responded to Mr Y on this point when he raised it, they may well have reached a decision to terminate the tenancy, or taken further independent advice on what to do. The Council’s actions meant Mrs B was unwittingly running up a debt.
37. The Council’s benefit team say that Mrs B was not entitled to the HB as she could not return, even if she wanted to. I also note that the whole period, from when Mrs B went into hospital was over 52 weeks and so she would have been liable for some rent. However, it was for the Council’s social work team to assist with the tenancy issue as part of the care planning, even if this was limited to giving advice. It also could have told its benefit team that she was not living at home. It is not so much that Mrs B would have successfully claimed HB but that she and her family would have been able to make better decisions about her tenancy and so avoided the debt for the most part.

Agreed action

38. As a result of this complaint, the Council has made some service improvements so that transfers between teams are handled better, information about tenancies are better recorded, and social workers are aware there are benefit issues when people are living away from a home but have not ended their tenancy.
39. The Council has apologised to Mr Y. It has now also agreed to write off the debt and refund the amount of the overpaid housing benefit to Mrs B’s estate.

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Final decision

40. There was fault by the Council causing an injustice to Mrs B. The Council agreed to take the recommended action, so we have completed our investigation.

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Investigator's decision on behalf of the Ombudsman