The Ombudsman's final decision
Summary: We will not investigate Mr B’s complaint about the Council’s failure to advise him to secure a charge on his late mother’s, Mrs C’s, property. This is because it is unlikely we would find enough evidence of fault to warrant investigation.
The complaint
Mr B complained the Council’s failure to advise him in 2018 to place a charge on his mother’s, Mrs C’s, property when he decided not to pursue a Deferred Payment Agreement (DPA) has resulted in Mrs C paying for care which should have been paid for by the Council. Mr B says the Council: failed to give advice about placing a charge on the property when he chose to loan Mrs C the cost of her care against her share of her bungalow; has been overly strict in its interpretation of the statutory guidance set out in the Care Act 2014 when assessing Mrs C’s finances; took over five months to consider his appeal against the decision to charge Mrs C the full cost of her care resulting in delay in him, as executor distributing the balance of the estate to beneficiaries.
Mr B says the Council should pay him £4000 compensation for its failure to inform him to place a charge on the title of Mrs C’s property.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr B contacted the Council in 2018 regarding a Deferred Payment Agreement (DPA) to pay for Mrs C’s care. The Council provided him with information about the scheme. Mr B says because of the costs and bureaucracy incurred in arranging a DPA he decided to loan Mrs C funds to pay for her care privately. Mr B says if the Council had advised him properly he would have placed a charge against the property in order to ensure he could recoup the total amount he paid for Mrs C’s care.
The Council says the Care Funding Booklet also provided with the information about DPA’s advises service users and their representatives to seek appropriate independent advice. Mr B says this is specifically in relation to DPA’s and he should have been advised about placing a charge on the property.
It is not the role of the Council to provide legal advice. The Council advised Mrs C in 2018 to seek independent advice and if Mr C wanted to secure the loan against the property he should have taken legal advice about doing this. In June 2021 Mr B advised the Council the property had been sold. The Council reassessed Mrs C’s finances and advised Mr B until the full cost of Mrs C’s care fees had been deducted from the capital he could not be reimbursed the monies he loaned Mrs C to pay for her care. The property was sold on 7 May and the loan repaid on 14 May. Mrs C’s assets were then below the threshold for her to pay the full cost of her placement and she was assessed to pay a contribution towards her care.
Any injustice caused to Mrs C’s estate is not because of the actions taken by the Council. The Council considered Mr B’s complaint and although there was a delay in considering an appeal against Mrs C’s financial assessment the Council apologised for this. It explained the delay was because it took advice about how the legislation applied in Mrs C’s case and staff sickness. We could not add to this even if we investigated.
Mr B says the Council has been overly strict in its interpretation of the statutory guidance. The Council has followed the guidance set out in the Care Act and there is not enough evidence of fault with the way it has considered it to warrant an Ombudsman investigation. In the absence of fault, we cannot comment on the merits of decisions.
It is the responsibility of the executor to collect the assets, pay any debts and use the resulting balance to distribute to any beneficiaries. Care fees are a priority debt. While Mr B decided to wait until the outcome of the appeal to distribute the balance to beneficiaries of the estate, there is no injustice to the beneficiaries because of the Council’s actions.
Final decision
We will not investigate Mr B’s complaint because there is not enough evidence of fault with the actions taken by the Council to warrant an Ombudsman investigation.
Investigator's decision on behalf of the Ombudsman