The Ombudsman's final decision
Summary: Mrs X complained the Council incorrectly assessed the value of her late mother, Mrs Y’s, share of their jointly owned property when it carried out Mrs Y’s financial assessment. This meant it charged Mrs Y more in care home fees than it should have. We have ended our investigation as the Council had already agreed to accept a lower payment from Mrs X in settlement of the debt. We are unlikely to be able to achieve anything more by further investigation.
The complaint
Mrs X complained the Council incorrectly assessed the value of her late mother, Mrs Y’s, share of their jointly owned property when it carried out Mrs Y’s financial assessment. This meant it charged Mrs Y more in care home fees than it should have. Mrs X says the Council has since reduced the debt but has refused to refund the solicitor’s fees she incurred in sorting this out. This has also caused her time and trouble and frustration.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6)) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I have considered the information provided by Mrs X and discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries.
I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.
What I found
Legal and administrative background A council may charge for the cost of care it provides to meet someone’s care and support needs. Where the person has capital above the upper capital limit of £23,250 the person will need to pay the costs of their care in full. Otherwise, the council will carry out a financial assessment to determine how much they should contribute to the cost of their care.
What happened In 2015 Mrs Y moved into a care home. She self-funded her care. When her savings were used up her daughter, Mrs X, contacted the Council for financial assistance. The Council carried out a financial assessment in May 2017. It backdated this to November 2016. Mrs X and Mrs Y jointly owned Mrs Y’s property as tenants in common. When Mrs Y moved into the care home Mrs X sold her property and moved into the house she jointly owned with Mrs Y.
The Council obtained an independent valuation of the property and decided Mrs Y had over £23,250 in capital so could self-fund her care. Mrs X queried the value of the property as it had subsidence.
The Council wrote to Mrs X in April 2018. It said it understood Mrs X was going to approach the Court of Protection to get deputyship for Mrs Y. It said for six months, while this was being arranged, it would invoice Mrs Y. The Council later agreed to extend this time period however Mrs Y died in January 2018.
In 2019 Mrs X’s legal representative corresponded with the Council and provided revised valuations for the property. The Council agreed to accept a revised value for the property. It considered Mrs Y’s capital remained over £23,250. It calculated Mrs Y owed over £18,000 to the Council.
In March 2021 the Council wrote to Mrs X’s solicitors and explained it intended to issue a claim against Mrs Y’s estate for the money it was owed.
Mrs X’s solicitors responded and argued the amount was incorrectly assessed. It said Mrs X was willing to pay an amount of around £9,000 which was the amount of Mrs Y’s income not paid to the Council minus top up fees paid by Mrs X.
The Council responded that it was considering the offer. It said it did not accept the reasons behind the offer however it saw no merit in potentially incurring further costs pursuing the matter via the legal route. In May 2021 it agreed to accept the offer proposed by Mrs X’s solicitor ‘in full and final settlement of the matter’. In July 2021 Mrs X paid the Council.
In August 2021 Mrs X complained to the Council. She referred to errors with top up fees which resulted in the Council requesting over £9,000 in error. Mrs X complained the Council requested payment of over £18,000 and it took months of correspondence before this was resolved. Mrs X said it cost her nearly £2000 in legal fees to prove the error. Mrs X sought compensation at least of her solicitor’s fees The Council responded in November 2021. It explained the Council had agreed in May 2019 Mrs Y’s estate was worth £41,600 and Mrs Y owed the Council £18,367.27. It confirmed the Council had received Mrs X’s payments and the account was settled. It said it could not offer compensation or the solicitor’s fees. Any legal fees would have to be covered by Mrs Y’s remaining capital or an alternative source. The response made no reference to the correspondence between Mrs X’s solicitors and the Council.
Mrs X remained unhappy and complained to us.
Analysis Mrs X was a party to the financial assessment completed by the Council in 2017. If Mrs X had concerns about the process and assessment it was open to her to complain to us at that time. There are no good reasons why she could not do so and it is too long ago for me to consider what happened now.
Mrs X complained the Council had calculated Mrs Y’s debt wrongly. The Council in its complaint response considered there was no fault in the way it had calculated the debt. However, it did not appear to acknowledge the correspondence between Mrs X’s solicitor and the Council.
Mrs X’s legal representatives corresponded with the Council about the debt and raised issues but during this correspondence the Council did not accept any fault in the way it calculated the care fees Mrs Y’s estate owed the Council. I do not intend to investigate this matter further This is because the Council agreed to Mrs X’s request to pay a lower figure in full and final settlement of the matter.
Mrs Y is now seeking further compensation and the refund of legal fees. However, the Ombudsman does not award compensation in a way a court might. When Mrs X reached a settlement with the Council it was open to her to request her legal fees be taken into account. The Ombudsman is a free service and we would not normally seek the refund of legal fees.
If I were to investigate further it is unlikely I would conclude the Council’s calculations were wrong or that it should not have taken the property into account. The Council agreed to accept a lower payment and it is unlikely I would achieve anything more by further investigation.
Final decision
I have ended my investigation as I do not see that further investigation will lead to a different outcome.
Investigator's decision on behalf of the Ombudsman