New thread stemming from discussion in Self funding if pension is over £400 a week

[WILLIAMR]

Why do you write "surprisingly"? They have no legal power to compel you to do so. They could only seek to recover in limited circumstances if there was an unlawful deprivation of assets involved.

W

Hi W

I knew the LA could not force me to sell my bungalow to fund my step mother's care but the social worker was convinced that as she was married to my father my father's and mother's assets automatically went to my step mother what ever the wills said.
After the meeting she kept on coming up to me and said the bungalow should be used to pay for my step mother's care.

William

 

[Wirralson]

Hi W

I knew the LA could not force me to sell my bungalow to fund my step mother's care but the social worker was convinced that as she was married to my father my father's and mother's assets automatically went to my step mother what ever the wills said.
After the meeting she kept on coming up to me and said the bungalow should be used to pay for my step mother's care.

William

That would only be true (in England and Wales) if the property was owned in Joint Names. The property would then pass by right of survivorship to the surviving spouse. (My parents didn't understand the difference between joint tenants and tenants in common.)

W

 

[WILLIAMR]

That would only be true (in England and Wales) if the property was owned in Joint Names. The property would then pass by right of survivorship to the surviving spouse. (My parents didn't understand the difference between joint tenants and tenants in common.)

W

You are correct W.
If my father had needed care as a joint owner I could have not been forced to sell as there is no market for half a property when the other owner is unwilling to sell.
It would not surprise me if the law could get changed re tenants in common ownership in future but I don't think anything could be done about existing situations where the offspring owns half of a parental home.
Also it would be in effect be making a first spouse responsible for the care fees of a future spouse.

William

 

[vernumamy]

It might be something specific in legal terms, but in my world, passing unsolicited financial information to third-parties without the family's knowledge is a breach of trust in the moral context at the very least.

You know Cornishman, I fully understand what you are saying, and where you are coming from.

It may seem like you are banging your head against a brick wall, and I hope that you don't, for one minute think, that you are not making yourself understood.

A breach of trust isn't always about " legalities ", but your own morals and principles.

 

[Wirralson]

You know Cornishman, I fully understand what you are saying, and where you are coming from.

It may seem like you are banging your head against a brick wall, and I hope that you don't, for one minute think, that you are not making yourself understood.

A breach of trust isn't always about " legalities ", but your own morals and principles.

A breach of trust has a specific legal meaning and alleging it is a very serious matter indeed, as it can incur civil and criminal liability. It doesn't apply here, as there is no fiduciary duty. At most this is a breach of DPA98 or a non-actionable breach of confidence. That's quite bad enough.

Using terminology incorrectly can mislead others, hence the correction. I have specific reasons for this. I know of a case where someone attempting to sue for a breach of trust when they meant breach of confidence. The did so as a litigant in person which meant there was no professional filter on their terminology until they came to try and bring their case. The grief this caused them was immense. Even now I don't think they understand why they got nowhere.

W

 

[Wirralson]

You are correct W.
If my father had needed care as a joint owner I could have not been forced to sell as there is no market for half a property when the other owner is unwilling to sell.
It would not surprise me if the law could get changed re tenants in common ownership in future but I don't think anything could be done about existing situations where the offspring owns half of a parental home.
Also it would be in effect be making a first spouse responsible for the care fees of a future spouse.

William

Can't see that happening. There are too many other issues depend on this.

W

 

[Chris-G]

The point I made was that the NHS in the form of the CCG was not, as you alleged, at fault on this point in this issue. Their actions are defensible in that once they receive the email, they can't really lawfully delete it.

The LA has a legal duty to recover costs. The window it has to do so after a CHC refusal is very short. They should wait for the CRAG questionnaire. However, it is very common for relatives to refuse to fill it in (I'm not saying you'd do such a thing but it is very, very common.) LA staff do in many cases distrust and dislike "relatives" in this situation. So poor quality low-grade (in alls senses staff) tend to try and gather information by any means possible and think they are being clever. I don't say that is right - far from it: I make my living partly by teaching people how to do their jobs lawfully in this respect and investigating when they make this kind of mess, including providing evidence for their dismissal. To me the main blame here lies with the LA in recording the information. But it is worthwhile blaming the right person(s).

In this case I would argue that the LA is in breach of the First, Second, Third (insofar as it relates to relevance) Fourth and Sixth Data Protection Principles. For convenience, they are below:


1 Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
​

2 Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

3 Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

4 Personal data shall be accurate and, where necessary, kept up to date.......

6 Personal data shall be processed in accordance with the rights of data subjects under this Act.

It is harder to make a case for a DPA98 breach by the nursing home manager, especially at this distance in time. I doubt the ICO would take any action against them - they might against the LA. It's worth dropping them an email with the details - if nothing else it is a quick method of putting down a marker. You could cut and paste from your posts here.

Finally there are only limited formal legal duties on the LA (or NHS) to consult the "family" on any issue (including finance), and there will be policy restrictions on the extent to which they may or are willing to do so. It isn't the case, that I think "the family is wrong and anyone else can do as they like" but the legal reality is that the rights of third parties (relatives) are pretty limited, and there is wide latitude for the NHS, LAs and nursing/care homes, which does give them strong hands of cards in many (perhaps most) situations vs families. I don't think that's always right or always in the best interests of the individual (nor is it always in the interests of the NHS or LAs). Unfortunately making a new heaven and a new earth isn't in my gift - I can only try and how to obtain suggest rearrangements of the ones we've got.

W

Off message but relevant. Within the last four years we had a lettings agent acquire our PIN (via our mail), for the retrieval of our secured deposit. They then logged on to the deposit agency's computer and altered 9 pieces of data on my file whilst pretending to be me.

They then helped themselves to 270 odd, quid.

The agency (I won't name them), refused to act. I believe because it exposed a massive security breach in their £1 billion of cash accounts that are entirely automatic and have just an easily obtainable PIN number to protect them. (Agents and landlords have access to properties and residual mail after all).

Because of the phone hacking case I presume.... the ICO refused to act at all.

Trading standards wrote to them and told them that what they had done was unlawful (I hold the copy letter), and not to do it again then ignored our pleas for action.

The Cops wrote after nine months of doing nowt, that it was a civil matter. Theft and Computer misuse is actually a criminal matter.

Yet the agent also broke criminal law too (eg. Computer misuse act.) Let alone fraud by obtaining and using someone else's PIN. Of course telling a computer that you are someone else to their disadvantage is also fraud. I became very ill for a year or two and could not fight the matter further.

The ICO called it a civil matter and didn't even write to them let alone investigate.

As such I have very little faith in the ICO.

CG.

 

[Wirralson]

Off message but relevant. Within the last four years we had a lettings agent acquire our PIN (via our mail), for the retrieval of our secured deposit. They then logged on to the deposit agency's computer and altered 9 pieces of data on my file whilst pretending to be me.

They then helped themselves to 270 odd, quid.

The agency (I won't name them), refused to act. I believe because it exposed a massive security breach in their £1 billion of cash accounts that are entirely automatic and have just an easily obtainable PIN number to protect them. (Agents and landlords have access to properties and residual mail after all).

Because of the phone hacking case I presume.... the ICO refused to act at all.

Trading standards wrote to them and told them that what they had done was unlawful (I hold the copy letter), and not to do it again then ignored our pleas for action.

The Cops wrote after nine months of doing nowt, that it was a civil matter. Theft and Computer misuse is actually a criminal matter.

Yet the agent also broke criminal law too (eg. Computer misuse act.) Let alone fraud by obtaining and using someone else's PIN. Of course telling a computer that you are someone else to their disadvantage is also fraud. I became very ill for a year or two and could not fight the matter further.

The ICO called it a civil matter and didn't even write to them let alone investigate.

As such I have very little faith in the ICO.

CG.

ICO caseworkers vary enormously - I've seen the same case sent twice to the ICO in error and come back with very different answers...

They won't investigate any case where there is an immediate possibility of criminal prosecution or civil action.

I suspect that the police (in)action was (probably) due a common but misplaced belief that most such cases result from individuals being lax about their own security. Also, lettings agents are a protected species as far as some local politicians are concerned. Investigating one if you work for an LA is a good way of seeing how quickly your P45 arrives.

The example you describe is a very good illustration of a kind of large-scale identity fraud. It's also almost impossible to prove (tenants and keys are a bad mixture and they can get all sorts of residual mail as well as the agents). To say nothing of deliberate criminal penetration of such businesses - it's a big problem for banks too.


Sorry to hear of it, though Chris.
W