London Borough of Wandsworth at fault in charging for care outside of care plan, and delay in invoicing estate

Decision Date: 19th December 2019

What Happened

Mrs M complained that the Council wrongly charged for her late mother’s care (Mrs Y), and following her mother’s death, delayed in sending the invoices.

The Council provided Mrs Y with multiple daily support visits, plus two hours a week to support with housekeeping, and weekly night cover.

In March 2015, Mrs Y moved to an extra care sheltered scheme, reduced her care package to two calls a day, and said she was unhappy with the night-time calls and preferred her privacy.

She never returned the financial assessment forms that were provided. She was warned that this would result in a full cost charge, but still did not respond.

The Council reviewed and revised her care plan in November 2015, noting that she did not want night calls, and in May 2016, upwards.

The evidence showed that Mrs Y had paid the Council invoices for the services it provided, up until the end of February 2016.

In August 2016, the Council invoiced Mrs Y for care received between February 2016 and August 2016. It then sent a further invoice in October 2016 for care received by Mrs Y between August 2016 and October 2016. The invoices amounted to £9,057.46. This included charges for night care of £787.75, although she had not been receiving night care.

In November 2016 Mrs Y made a payment of £2,000, leaving £7,057.46 outstanding.

In February 2017, Mrs M called the Council, asking it to reduce Mrs Y’s care package to one hour in the morning only. The Council agreed to contact the care agency to tell them of the change.

Mrs M also emailed the Council in February, asking them to adjust their invoice (£7,057.46), as it did not reflect the change in care provided, and Mrs Y did not receive night care. The Council said it emailed Mrs M in October 2017 and confirmed night care charges were part of the scheme (the extra care scheme) and must be paid. Mrs M said she never received this email. 

Mrs Y died in May 2017. Mrs M was executor to her estate and was granted probate in September 2017.

The Council invoiced Mrs Y’s estate at the start of November 2017 for the care provided to Mrs Y between October 2016 and her death in May 2017. This was for £4,557.96. Mrs M paid £3,669.68. This left £888.28 of outstanding costs invoiced in November 2017.

Mrs M said she did not receive the invoice, and was unaware of the outstanding amount and the early costs of £7,057.46 when she distributed the estate fully in April 2018 in her role of executor.

The Council did not then contact Mrs M again until October 2018 about the outstanding debt of £7,945.74, (the feb-oct 2016 invoice of £7,057.46 and the nov 2017 invoice of £888.28).

Mrs M disputed the invoices and complained in November 2018.

The Council did not uphold the complaint. It considered the debt was due and should be paid. It explained that as executor to Mrs Y’s estate, Mrs M was personally responsible for the charges.

Mrs M’s solicitor then wrote to the Council. The solicitor noted the Council had not made a claim on the estate within the 6-month period following the grant of probate, so Mrs M and the estate would not be liable for the charges. It also said the estate had been distributed.

Mrs M offered to pay £3,500 as this was as much as she said she could afford. The Council rejected this, but suggested Mrs M pay £3,500 as a first instalment in a payment plan in which she would then pay £200 per month until the amount was paid.

What was found

Cost of care

The LGO stated that Mrs Y’s care assessments did not show that Mrs Y had eligible night time needs. This meant that Mrs Y, and Mrs M as her executor, had been asked to pay for care which the Council did not provide or consider Mrs Y needed. This was fault. There was no evidence of an agreement to pay night-care charges; Mrs Y did not use the night care and there was no requirement noted on any of the care plans for Mrs Y to receive night care.

This affected not only the outstanding charges but also those already paid.

Furthermore, in February 2017 Mrs M had clearly requested Mrs Y’s care package be reduced to one visit a day, because she did not need the other visits. The notes showed the Council agreed to tell the care provider about this. However, there was no evidence to show Mrs Y’s needs were reassessed, or that her package was reduced. This was fault, and meant Mrs M was charged more than she should have been, from February 2017 onwards.

Delayed invoice to estate

The Council did not provide Mrs M with information about the remaining charges until six months after Mrs Y’s death. This was fault. The Council said this was due to staff restructuring in the time following Mrs Y’s death.

Mrs M said she did not receive either the email of October 2017 or the invoices sent in November 2017 and said she had paid the Council for what she thought was the final bill.

The LGO considered that because Mrs M had made a payment, after she was granted probate, this showed she must have received at least one invoice. If she had received one invoice, it was more likely than not that the Council had issued the invoices.

The LGO considered the injustice of the six-month delay was minimal, because Mrs M did not receive the grant of probate until September 2017 to start paying the estate’s debts, therefore the Council was within the time period, and correctly claimed the debt from estate funds.

Overall, a remedy was not required for this fault. As the funds were fully distributed in April 2018, with the care costs outstanding, Mrs M as executor had become personally liable for the debt.

The invoice disputed before May 2017

Mrs M said she was not contacted about the outstanding charges of £7,057.46 after her mother’s death.

The LGO highlighted that the 2016 August and October invoices, and Mrs M’s email asking the Council to reduce the bill, show that Mrs M was aware of the debt before becoming executor, therefore the Council was able seek payment of the charges from the estate.

However, the Council was at fault as it did not contact Mrs M about the debt until October 2018, nearly a year following the invoices being issued. Mrs M was previously aware of the debt so the LGO did not consider any significant injustice.

To remedy the fault the LGO recommended the Council waive the outstanding night care charges and refund those already paid, reduce the day care charges from February 2017 onwards to reflect the requested reduction in the day care provision and issue an amended up to date statement for the remaining outstanding costs for Mrs Y’s care.

Points for the public, service users, charging officers, family members, PoAs, etc:

When a person lives in extra care, it is common for the tenancy to involve an obligation to pay for the night time support (which is never described as care) which may be on site, such as a warden (whether one needs it or not – it being as much for the future as for the point at which one moves in).

That tenancy related obligation has nothing to do with the care package that the person gets under the Care Act from the council, other than perhaps being able to be regarded as something which the person has organised for themselves which goes to reduce the need the person would otherwise have, if they had remained in private accommodation without a night time service.

We do not know how the council can have thought that it could invoice the woman for a service that would not have been part of the care package. There are three possibilities here, though, that we can identify, and we wish the LGO investigator had dug a bit deeper:

  1. It is just possible that a council may be paying for that support service directly, by way of an arrangement for preventive and reducing services, however, and charging the client back for THAT, under provisions that allow for charging, in s2 of the Care Act. That is not the same as the means tested charge for duty based Care Act services in a care plan, however, because the service is not provided pursuant to s18 of the Care Act, but pursuant to s2, itself.
  2. It is possible that the extra care tenancy contained an obligation to pay for night time oversight, and that the council was in some way collecting those charges FOR the housing provider, as a result maybe of having been granted nominations by the housing association to tenancies.
  3. Alternatively, the council may have been the housing provider, itself; and therefore thought itself entitled to charge for the warden service in the same overall calculation as for the Care Act services.

Whatever the reason, however, living at this sort of a scheme always involves a tenancy, and the woman must have signed one, so the LGO’s investigator could have done more to identify what on earth the council meant when it said it was charging because it was a condition of the scheme.

Under the Care Act, in terms both of preventive OR post-assessment services, it’s clear that one cannot charge for something that has not been received.

As far as executors’ liabilities are concerned, it is important to note that whilst an executor can be made liable even for the deceased’s debts that they did not know about, they cannot be made liable for invalidly CHARGED debts in the first place!

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The full Local Government Ombudsman report can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/18-018-419