Standing order not cancelled when mum went into care home rent continued to be paid for 6 years !!

[DB2310]

Our mum was diagnosed with dementia in 2013 and we had the heartbreaking decision to find a care home. She had always been strong and independent until this cruel disease took hold.
Before going into the care home she rented a house from a private landlord and had a standing order to pay the rent monthly we gave notice to owner and pension and benefits office and gave back keys and he paid back the deposit by cheque and then rented the house to new tenants. We have now found out that the standing order wasn't cancelled and has continued to be paid by the bank to the landlord although she received no money into her bank only a small pension of monthly which we only found out about when she recently passed away.
So every month there was insufficient funds so bank put charges on and then once after every few months there was enough money in there the standing order for the rent went out to the landlord this has come to a total of approximately £16000.
We have been to the bank and they have said no crime was committed and basically wiped their hands of it although I do think they are liable to a certain extent as they should have picked up the obvious changes in her account activities only receiving 125 but standing order 675 when this never happened in over 30 plus years.
We don't have enough money for lawyers we have a funeral bill to pay and just need legal advice. Please please can someone help us
My mum was a good person who never got into debt, never overdrawn at the bank and someone has had her money and nobody wants to help.

 

[nae sporran]

Welcome to DTP @DB2310 and condolences on the loss of your mother. Sorry you now have financial worries to deal with. I don't know what your options would be, the National Dementia Helpline are good people to talk to about legal problems and can point you in the right direction free of charge. The phone number and opening hours are available on https://www.alzheimers.org.uk/get-support/national-dementia-helpline

 

[DesperateofDevon]

that must have been such a shock
Ontop of everything else
As the landlord has been receiving money for a service not provided that’s fraudulent & I don’t expect the landlords put that through & declared it to the inland revenue! I think you don’t need to worry too much. Plus the evidence of Mum going into a home from the Department of work & pension, not cancelling the direct debit should have been flagged by the bank as they would have been notified of the change of address as to living arrangements. whoever is doing probate on the estate can raise this query with the probate office about money being taken fraudulently from the account- contact the omnibudsman for financial services. Also a letter to the banks head office is in order once you’ve ticked the other boxes

CAB offices will be able to advise you but google searches can produce as much information now.

also contact Martin Lewis via the website. He’s a whizz with this financial legal advice, & his website gets back quicker than a CAB appointment

 

[jugglingmum]

I doubt you have much come back on the bank, as I suspect they haven't actually done anything wrong, and you need to pursue the private landlord. At most you are likely to get bank charges back from the bank. If anyone held POA they were responsible for this, and should have notified the bank.

It is technically theft to keep monies you know you aren't due, although I don't know how far you can easily claim back, but it is at least 6 years.

I'd write a letter to the landlord in the first instance, and advise that you will take legal action if they don't repay you if you haven't done already. I realise you say you can't afford legal action, but there are specialist debt collection solicitors and they don't charge a fortune for this sort of work, so might be worth seeing if you can find a local one and if they do the first appointment free, you don't have to use them, just have an initial meeting to see if they can help you. Any costs would be recoverable from the landlord as well. Google debt collection solicitors and the name of your town/city.

I don't know how the Martin Lewis website works but it sounds like it's worth a try first to advise how to do the initial letters.

 

[jaymor]

A standing order is an arrangement that the account holder agrees to send money on set dates fromtheir account. This will stop when the standing order is cancelled. This is very different to a direct debit where the account holder agrees to A company claiming money from an account.

Because of this being a standing order I can’t see how it can be seen as fraud. The landlord is the villain here because he/she has received money that they are not entitled to so should have returned the funds and the standing order cancelled by whoever was managing the affairs of your Mum. Your claim for a refund will be from the landlord.

I would have thought letters would have been sent to your Mum from her bank saying the standing order had not been paid because of lack of funds on her account. Of course if the address had not been changed on her account then the letters would be going to the landlords property. He/she is the one at fault here and should be refunding the money he had no right to accept into his/her bank account.

I hope you can sort it out.

 

[Grannie G]

I remember belonging to a Book Club years ago and paying by Standing Order. After a few years I got fed up and cancelled the books but failed to cancel the standing order.

Obviously I didn`t lose as much money as you @DB2310 before I realised, but was unable to get any refunds from the bank because I hadn`t given them notice, even though I had received no books.

 

[Palerider]

I've been juggling around how you can get some of this back with minimal cost. You can't go against the bank as they have upheld whatever order was made to pay the amount, and besides unless you have the funds available taking on a bank would be difficult anyway, even if they were notified of any changes it would take a lot of work to get them to release any documents showing that.

The only way forward if your struggling but you have clear evidence that this money was taken but not due is to go through the small claims court, however, you will only be able to claim up to £10,000 and you will need to fill the forms out correctly, which is very important. Don't get into quivels just present your argument and your evidence as you have it.

You need to give two weeks notice of intent to take them to the small claims court and if no offer of payment is made then serve the writ, but be prepared to stand in front of a judge and state your case.

Have you reported this to the national fraud line?? I strongly suggest you do

 

[jugglingmum]

I don’t expect the landlords put that through & declared it to the inland revenue!

This has been going round in my head. It isn't relevant to original post, but as this isn't actually income, it doesn't need reporting to HMRC (successor to Inland Revenue in 2005). If this is a larger landlord, then accounts are likely to be drawn up and it may well be shown as a creditor. There is no information to indicate it the landlord has been approached for the money.

HMRC have multiple powers to track down landlords, and do tend to be quite quick off the mark on checking rental income is declared correctly.

Have you reported this to the national fraud line?? I strongly suggest you do

This is only fraud if the monies are retained by the landlord when requested they are returned. Given no one appears to be aware that the SO was bouncing, then it might be the landlord didn't have an address for the lady in question, although I note he did return the deposit. The landlord couldn't cancel an SO. No mention is made as to whether the landlord has been approached. Due to data protection and now GDPR then the bank wouldn't be able to give the landlord any details if they had them.


Re original post and funeral costs, if your mum had no assets I think you can claim towards the costs of the funeral from teh DWP - however if you recover the £16,000 then this would be an asset and you would have to use this to pay the funeral.

Also you mention a small pension, it might be this should have been paid to the care home to cover care home fees, I am assuming your mum was LA funded, as normally all pensions are paid to the La (including private pensions) so before spending time chasing it down, it might not be worth it if you are going to have to pay it over.

 

[DesperateofDevon]

You can also ring up Trading standards

To receive money for services that you knowingly are aware that aren’t being received is fraudulent. The landlord paid back the deposit therefore he was aware that the tenancy agreement had ended.


As a landlord you have legal obligations. To receive rent on a property that is rented out already or sold is fraudulent. All monies received in payment for rent are seen as income, & have to be declared as such. As being a private landlord means self employment assessment forms all forms of income on properties must be declared by law. That is why this is classed as fraudulent behaviour & notifying the Inland Revenue can only help you build a civil case against the landlord.

I’m sorry but £12000 into your business account & not being aware of it?
No I am self employed & every penny gets scrutinised as incomings & outgoings.
The landlord knew!

& kept the money !

morally wrong & legally.

 

[jugglingmum]

No I am self employed & every penny gets scrutinised as incomings & outgoings.

I presume it is your accountant scrutinising it as HMRC certainly don't look in detail at small traders. Most accountants if presented with a good set of records do not scrutinise the income and outgoings either.

A landlord isn't self employed, although you are correct in that they are required to prepare self assessment returns if they are not incorporated.

To receive rent on a property that is rented out already or sold is fraudulent.

This is technically an overpayment, it is not fraud in the eyes of the law, it isn't the landlords obligation to return the monies it is the tenants obligation to reclaim them, within the time limits prescribed by statute, normally 6 years, although can sometimes by 12. It would be fraud if the landlord had asked for payment when it wasn't due but he didn't, the tenant didn't cancel a standing order, which the landlord couldn't do anything about. We don't know how he returned the deposit, so we don't know if he had contact details for the relatives.

Until such time as efforts have been made to request the monies back from the landlord and he has refused to repay then no offence has been committed. The error was on the part of the tenant.

Until recently rental income was required to be accounted for on an accruals basis on self assessment returns so if the landlord had included the income it would be incorrect as it wasn't his monies. It is technically fraud to recognise the income as taxable if it isn't due to you, legally it should remain on your balance sheet as overpayment. The law on this changed a few years ago, until then it wasn't fraud to recognise overpayments as income. (I have been on courses on this which explained the change at the time).

I think notifying HM Revenue and Customs (inland revenue ceased to exist in 2005) without due process being followed could be seen as vexatious, and it whilst HMRC might open an enquiry into the landlord they wouldn't provide any information to the person that complained and it wouldn't help your case.

If it is a large landlord with multiple properties it might well be the monies are sitting in a suspense account and haven't been allocated. Whilst the sum is £16,000 over 6 years it is about £2,700 a year, which for many landlords with multiple properties, it wouldn't be that large a sum. If the bookkeeper or admin staff haven't brought it to anyone's attention then it will have been overlooked. So no offence committed and no malicious intention.

They returned the deposit as they were asked for it, and then probably closed the file.

As I stated in my first post, the indications are that the OP's mum was LA funded and in this case the pension should have been paid over to the LA towards the care home fees. If this is the case the monies aren't due to the OP but the LA and if the OP did reclaim them back and not pay them on to the LA then that would be fraud.

 

[Jessbow]

Who was managing her money after she went into the home? Sounds like a long time for who ever that person was not to have noticed.

 

[cobden 28]

A standing order is an arrangement that the account holder agrees to send money on set dates fromtheir account. This will stop when the standing order is cancelled. This is very different to a direct debit where the account holder agrees to A company claiming money from an account.

Because of this being a standing order I can’t see how it can be seen as fraud. The landlord is the villain here because he/she has received money that they are not entitled to so should have returned the funds and the standing order cancelled by whoever was managing the affairs of your Mum. Your claim for a refund will be from the landlord.

I would have thought letters would have been sent to your Mum from her bank saying the standing order had not been paid because of lack of funds on her account. Of course if the address had not been changed on her account then the letters would be going to the landlords property. He/she is the one at fault here and should be refunding the money he had no right to accept into his/her bank account.

I hope you can sort it out.

Whose responsibility was it to notify the landlord of her change of address and cancel the standing order with the bank?

 

[Palerider]

I presume it is your accountant scrutinising it as HMRC certainly don't look in detail at small traders. Most accountants if presented with a good set of records do not scrutinise the income and outgoings either.

A landlord isn't self employed, although you are correct in that they are required to prepare self assessment returns if they are not incorporated.



This is technically an overpayment, it is not fraud in the eyes of the law, it isn't the landlords obligation to return the monies it is the tenants obligation to reclaim them, within the time limits prescribed by statute, normally 6 years, although can sometimes by 12. It would be fraud if the landlord had asked for payment when it wasn't due but he didn't, the tenant didn't cancel a standing order, which the landlord couldn't do anything about. We don't know how he returned the deposit, so we don't know if he had contact details for the relatives.

Until such time as efforts have been made to request the monies back from the landlord and he has refused to repay then no offence has been committed. The error was on the part of the tenant.

Until recently rental income was required to be accounted for on an accruals basis on self assessment returns so if the landlord had included the income it would be incorrect as it wasn't his monies. It is technically fraud to recognise the income as taxable if it isn't due to you, legally it should remain on your balance sheet as overpayment. The law on this changed a few years ago, until then it wasn't fraud to recognise overpayments as income. (I have been on courses on this which explained the change at the time).

I think notifying HM Revenue and Customs (inland revenue ceased to exist in 2005) without due process being followed could be seen as vexatious, and it whilst HMRC might open an enquiry into the landlord they wouldn't provide any information to the person that complained and it wouldn't help your case.

If it is a large landlord with multiple properties it might well be the monies are sitting in a suspense account and haven't been allocated. Whilst the sum is £16,000 over 6 years it is about £2,700 a year, which for many landlords with multiple properties, it wouldn't be that large a sum. If the bookkeeper or admin staff haven't brought it to anyone's attention then it will have been overlooked. So no offence committed and no malicious intention.

They returned the deposit as they were asked for it, and then probably closed the file.

As I stated in my first post, the indications are that the OP's mum was LA funded and in this case the pension should have been paid over to the LA towards the care home fees. If this is the case the monies aren't due to the OP but the LA and if the OP did reclaim them back and not pay them on to the LA then that would be fraud.

I note your points @jugglingmum , and they are valid ones. If the LA is satisfied as matters stand and the claimant who posted this is concerned that extra monies have been paid, then the LA can't assume fraud in that way. Somewhere there is £16,000 outstanding, and I believe the claimant has made it clear that this as matters stand is in fact that in all likelyhood due to the LA discounting any pension or savings on the basis this lady had such a small income in any event. So that excludes that argument.

This is a very complicated matter for someone who just wants to genuinely retrieve what has been taken via automatic payment but not owed.

 

[Sirena]

I was wondering the same thing as Normaleila - have you written to the landlord explaining the issue? He may have set the money aside to return. Neither the landlord nor the bank would have been able to stop the standing order and if they were not given alternative contact details would have been able to get in touch with you. When my mother moved out of her rented flat to a care home I had to give notice to the landlord, return the keys and put a stop on the monthly standing order. I also put a postal redirect on all her mail so I could monitor any issues.

 

[DB2310]

Quick update.

Hello all and thankyou for your advice and kind words.

We did go to Citizens Advice and he advised us initially to write a letter to the landlord to point out the overpayment and for him to refund the money.

We did this straight away recorded delivery and signed for and sent it to his last address we had for him, this was the address we gave him the notice in writing and returned his house keys in 2013. Unfortunately the letter has been returned marked that he is "not at this address" and now we have come to a bit of a dead end I have looked online at ways to trace someone's address but without much success , obviously we have looked on social media etc and found out quite a lot but no address.

We could send private message etc but its easy for him to just block us to avoid paying this money back we need to get a letter to him to move on to the next steps of retrieving this money.

From what I have found out he likes to keep under the radar a bit probably for financial reasons.

We thought we cancelled everything of mums in 2013 when she went into care pension, housing benefit and notified all authorities including landlord etc we had no idea that mum had set up standing order for the rent and as far as we knew her bank account was empty and with so much going on at the time and ever since we just thought everything was done.

 

[Kikki21]

You could try & find him through 193 online - yes you do have to pay for searches but it should give you an address if you know his name & roughly where the landlord lived.
He could argue that as he can’t cancel the standing order then he can’t do anything about it but then he should give that money straight back to you as it doesn’t belong to him. I would go back to Citizen’s advice now & see what they suggest. You might need the services of a financial ombudsman as regards the bank. I hope this gets resolved for you.

 

[jugglingmum]

As posted above

- as this is a standing order not sure the financial ombudsman can do anything.

- as mum was in receipt of housing benefit, I've assumed she was LA funded, in which case she should have paid her private pension over to the LA - so there might be little point in chasing money that then has to be paid to someone else.

A land registry check might show who owns the property and their current address - it only costs a few £

 

[nitram]

A land registry check might show who owns the property and their current address - it only costs a few £

If you decide to do this use
https://www.gov.uk/search-property-information-land-registry
Googling can point you to far more expensive third party options.