Ombudsman holds SBC to account

a COMPLAINT about how Scottish Borders Council handled an assessment of how much a 94-year -old woman should pay towards her care home costs has been upheld by the Scottish Public Services Ombudsman.

The lady, known as Mrs C was a council tenant and in 1989, when she was 76, she bought her council house and under the right to buy scheme was entitled to a 60 per cent discount. The remaining 40 per cent was paid for by her son and daughter-in-law (Mr and Mrs A) and a legal agreement was drawn up between them that she would pay no rent and the proceeds from the eventual sale of the property would go to them.

However, when Mrs C could no longer stay at home and went into a care home in 2007, aged 94, Scottish Borders Council took the view that the 60 per cent discount remained with Mrs C and therefore 60 per cent of the sale of the house could be taken into account when a financial assessment was carried out into how much she should contribute to her care costs.

The council maintained that Mr and Mrs A were liable to pay £300 of the £450 a week care costs for Mrs A out of the money from the sale of the house, concluding that Mrs A had deliberately deprived herself of the asset 18 years previously, to avoid residential care costs. They said that when they wrote to the elderly lady in question, care of Mrs C, seeking clarification as to whether Mrs A ever owned the property and requesting that transfer documentation and solicitors’ details be provided they received no response and instructed their legal services department to conduct a legal search on the property’s title. This established that Mrs A was the legal owner of the property at the time she completed her financial assessment form.

Throughout 2008 there was correspondence between Mr and Mrs A’s solicitors and the council’s legal department and in January 2009 a formal complaint was lodged which was not heard by the social work complaints review committee until January 2010 because of staff absences.

The complaints review committee recommended that Mrs A’s financial assessment was reviewed but the council’s executive committee were persuaded by their legal department that the review committee had gone against legal advice and they decided to leave the financial assessment unchanged.

Mr and Mrs A took their case to the Scottish Public Services Ombudsman who concluded that “The council’s complaints handling was poor”.

The Ombudsman recommended that the council takes independent legal advice on Mrs A’s case then convene another complaints review committee hearing to reconsider the case “with reference to independent legal advice”.

The Ombudsman’s report reads: “The council’s own legal staff advised both the complaints review committee and the executive committee. The emphasis put on the council’s internal legal advice and the subsequent influence of their legal advisers calls into question the fairness of the hearing process and as such, I consider the council’s position to be legally unsustainable.”

The Ombudsman also recommended that the council review their staff absence procedures and introduce measures to ensure that future staff absences do not unduly impact upon the council’s complaints handling procedure.