The Ombudsman's final decision
Summary: The Council acknowledges there was an error in its calculation of the late Mrs X’s financial assessment. It has agreed to enable an application by her great-niece, Ms A, to become the administrator of the estate and so accept the back-payment due. There has been a delay on the part of the Council which caused inconvenience to Mrs X’s previous representative and the Council agrees to apologise to him and pay £300 to recognise the time and trouble he went to in resolving the matter.
The complaint
Mr B (as I shall call him) complained that the Council had miscalculated Mrs X’s contribution towards the cost of her care by assuming a pension was paid monthly instead of quarterly. As a result, she had overpaid over £6000.
The Ombudsman’s role and powers
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) If we are satisfied with an organisation’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)
How I considered this complaint
I considered the information provided by Mr B and the Council and we spoke to Mr B. I also spoke to Ms A, who took over the role of Mrs X’s representative. All parties had an opportunity to comment on a draft of this statement before I reached a final decision.
What I found
Relevant law and guidance The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
What happened Mrs X became resident in a care home in 2018. The Council undertook an assessment of her finances.
The Council accepts there was an error in its calculation of Mrs X’s contribution towards the cost of her care. The Council made its calculations on the basis Mrs X’s pension was paid monthly when in fact it was paid quarterly. The Council overcharged Mrs X by £47 a week from February 2019 onwards.
Mr B, who held power of attorney for Mrs X’s finances, contacted the Council in 2019 to point out the error. He says he emailed again but without receiving a response.
In May 2021 Mr B emailed the finance officer again about the upcoming assessment. He said the previous assessments had taken her pension into account on a monthly and not a quarterly basis. He said on that basis Mrs X had been overpaying by £47 a week for 126 weeks and asked if the Council could provide a refund.
Mr B emailed the finance officer again in September 2021 thanking him for the new assessments which reflected the quarterly payment of the pension. He said the question of a refund had still not been addressed. He said Mrs X had overpaid from 21 December 2018 to 5 April 2021. He said the total overpayment by her was over £6000.
In November 2021 Mr B spoke with a finance officer. He then emailed him to confirm that the Council now had the calculations to make good the overpayment back to the original start date.
In May 2022 Mr B emailed the officer again. He said it was now three months since the officer told him the calculations had been sent to the finance team to repay the overpayment, but nothing had happened.
Mr B complained to the Ombudsman.
Mrs X died in June 2022. The executor of her will had also died.
In August 2022 Ms A, Mrs X’s great-niece, took over from Mr B as her representative in the complaint.
The Council told us in September it did not dispute it had made an error and the overpayment by Mrs X was £6,223.77. It said “The outstanding issue is who we are able to pay this money to. (Mrs X)’s executor has passed away and neither (Mr B) or (Ms A) have a legal role. We have sought legal advice about this matter and have been advised someone will need to apply direct to the Probate Registry to become the Administrator of the estate and would then need to open a bank account ‘In the Estate of (Mrs X)”. This would then allow Lambeth to send the money to the Estate bank account and the Administrator could then distribute to the beneficiaries.”
The Council has now apologised to Ms A and arranged to pay to her the amount of the registration fee to the Probate Registry. It says that will enable her to become the administrator of the estate and the Council can then pay her the full amount owed (less the registration fee).
Analysis The Council accepts it made an error in its calculations which took too long to put right.
The Council also delayed in resolving the overpayment. Those delays put Mr B to some considerable time and trouble in pursuing the matter on Mrs X’s behalf, as he had a duty to do as her attorney.
The Council has now taken steps to enable the financial matter to be resolved. It should also recognise the injustice its delays caused to Mr B.
Agreed action
Within one month of my final decision the Council will also apologise to Mr B, as it has done to Ms A; Within one month of my final decision the Council agrees to offer Mr B a payment of £300 to recognise the injustice caused to him by its delays.
Final decision
I have now completed this investigation. I find there was fault on the part of the Council which caused injustice to Ms A and Mr B. Its current action and the completion of the recommendations at paragraphs 23 and 24 will remedy that injustice.
Investigator's decision on behalf of the Ombudsman