The Ombudsman's final decision
Summary: We will not investigate this complaint about adult social care and the associated charges. There is not enough evidence of fault by the Council to justify an investigation. The Council assessed the person using the service had capacity to decide about their care and told them they would need to pay the full cost. The Council only charged for the care following assessment. There is nothing to suggest the person using the service did not need or want the care. The disputed debt due from the estate would be best decided by a court.
The complaint
Mr B believed the Council was paying for his father (Mr C’s) care until it could assess Mr C. Mr B says the Council did not complete an assessment before Mr C’s death, so was surprised to receive a bill. Mr B says the Council did not contact him in Mr C’s lifetime, even though Mr B had power of attorney for Mr C’s finances. Mr B has found it stressful dealing with the unexpected invoice for payment following Mr C’s death.
The Ombudsman’s role and powers
We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by: their personal representative (if they have one), or someone we consider to be suitable.
(Local Government Act 1974, section 26A(2), as amended) Mr B is the executor of Mr C’s estate, so is a personal representative.
We investigate 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 continue an investigation if we decide: any fault has not caused significant enough injustice to the person who complained to justify our involvement, or we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or there is another body better placed to consider this complaint, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr B says the Council failed to involve him in decisions about Mr C’s care, and information about paying for that care. The Mental Capacity Act 2005 provides a framework to empower and protect people who may lack capacity to make some decisions for themselves. Mental capacity is time and decision specific, and a medical diagnosis is not evidence you cannot make any decisions for yourself. Although Mr B held a power of attorney for finances, this only enables you to make a best interest decision for a person when they lose capacity to make that decision themselves.
The Council assessed Mr C had capacity to decide how his care and support needs would be met.
The Council must then assess what, if anything, Mr C must pay for his care. The information Mr C gave about his finances was that he had capital above the upper capital limit set by government. The Council explained to Mr C this meant he would have to fund his own care.
There is not enough evidence of fault in the Council’s actions. It assessed Mr C to have capacity to make his own decisions about his care and told Mr C he was responsible to pay the full cost of the care. There is nothing to suggest Mr C did not understand what he was agreeing to, or that Mr C asked the Council to correspond with Mr B, or that Mr C did not need or want the care. The Council did not charge for the full time Mr C lived at the care home but charged from the financial assessment. There is nothing to suggest the Council is wrong in its assessment that Mr C had capital above the upper capital limit.
The Council has a responsibility for public funds and to pursue debts owed to it. The Council had to tell those responsible for Mr C’s estate that it was a creditor. If Mr B wishes to dispute this debt, the Council can take this debt to court and Mr B in his role as executor of Mr C’s estate can dispute in court why he will not pay. The court can then decide if the debt is owed from Mr C’s estate.
Final decision
We will not investigate Mr B’s complaint because there is not enough evidence of fault by the Council. It is unlikely the Ombudsman could add to the Council’s investigation or reach a different outcome so there is no justification to investigate. The dispute over the debt owed from the estate would be better considered by a court.
Investigator's decision on behalf of the Ombudsman