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How can i exercise my rights?

Discussion in 'Legal and financial issues' started by happyharry, Jan 21, 2015.

  1. happyharry

    happyharry Account Closed

    Jan 20, 2015
    Mum lost her mental capacity to dementia in 1999. She died last year in a care home aged 91.

    All these years, I have never asked how her pension was being paid on her behalf. I assumed somebody must be looking after her interests and I trusted them to do right by her.

    Because my brother went out of his way to disrespect her last wishes for her funeral, but also disrespected our father's right to a memorial in the same grave, I got letters of administration to pay for and put one up for them both. The grant I got issued to me covered the administration of all Mum's estate and I found myself lumbered with a claim from the DWP of an overpayment, possibly going back years. This has now been sorted.

    However, I have found out that Brother got an appointeeship over her state pension about 5 years ago but it seems before that, he had unofficial control of it. I have found out for the last 15 years, he had paid out only about 1 week's pension per year for her things such as clothes and toiletries.

    The DWP refuses to tell me anything because of the Data Protection Act. Surely this can't be how the Act is supposed to work? I feel my brother should be punished. I believe he has exploited his position, to keep Mum on a pittance while stashing up her benefit for himself. I feel that is why he refuses to give me any bank or other documents.

    How can I persuade the DWP to tell me where her pension was paid and get proper information about his activities? If I can prove he has been exploiting her all this time, who should I ask to investigate?
  2. garnuft

    garnuft Registered User

    Sep 7, 2012
    How was this 'sorted'? was it written off?

    The Data protection act protects an individual and if you don't have legal access to a person's information, you cannot obtain it or rather, it should not be disclosed.

    Your only option is to engage a Solicitor and unless you can afford it, I would suggest that's not an option.

    Bitter pill to swallow, however badly siblings act, financial or emotional, neglect or abuse, it stings, sometimes there is no recourse.

    I empathise.
  3. Katrine

    Katrine Registered User

    Jan 20, 2011
    #3 Katrine, Jan 21, 2015
    Last edited: Jan 21, 2015
    I am so sorry to hear of this distressing situation. You feel your mother has been betrayed. It does sound as if you and your brother have fallen out over the funeral arrangements and that he has not been co-operative to you in administering your mother's estate, for whatever reason.

    It occurs to me that it is possible that most of your mother's pension was used to pay for her care? Have you asked the care home how the fees were paid? If it was direct from the local authority then you need to speak to the LA finance team to get printed statements of how much was paid by them to the care home and what contributions your mother was assessed as needing to pay (and whether these were paid).

    Under the current legislation that applied up until the time your mother died, someone who has less that £23,250 of eligible capital can have their residential care fees paid by the local authority. However, the person will still have to pay a contribution towards their care. I am not an expert on this, and the sliding scale calculations of what people have to pay and how it affects things like Pension Credit, are beyond my brainpower.

    The point is that the resident still has to pay something. If they continue to have income, including state pension and other state benefits, then obviously those funds get used towards their care. They can still keep a small amount for things like clothes and toiletries, but it isn't a large amount.

    I really hope for your sake that this turns out to be the case, and that your brother has not been taking your mother's money for himself. If it turns out that the pension income was not spent on care fees then I'm not sure how you could prove what the money was spent on, or where it is if not spent (if your brother won't tell you).

    As a DWP appointee your brother could have set up a separate account to handle those pension funds and I guess this is what you want to find out, so that you can start a paper trail? IMHO you should be able to find out from them where the money was paid because Data Protection should not apply once the pensioner is deceased. DWP should at least tell you the account details and provide you with copies of your mother's annual benefit statements going back over those 5 years.

    That's what I think DWP should do, but whether you can make them do it is another matter. Sometimes you get further by sending a letter explaining why you need the information (to trace funds as part of winding up the estate) rather than trying to explain a complicated situation over the telephone. Not all phone monkeys know what they are talking about. If you send a letter you have some chance of it being reviewed by a manager.

    I totally understand that you want justice. The question is, how far do you want this to go? If you go to the police to try to obtain a criminal prosecution you would need a lot more evidence. If you can't find that evidence, can you find it in your heart to let it go, so that your memories of your mother are not permanently linked to your brother's disrespectful and obstructive behaviour at the end of her life?
  4. Wirralson

    Wirralson Account Closed

    May 30, 2012
    #4 Wirralson, Jan 21, 2015
    Last edited: Jan 21, 2015
    So far as the Data Protection Act is concerne, the DWP is correct. The Act only applies to personal data about living persons, so the only data relevant here is the data about your brother's actions. However, tehre is a continuing obligation of confidentiality to an extent in respect of your mother as well, although not under DPA98. Personal data includes any data which allows a living person to be identified from it. The Act only permits disclosure to a third pary (in this case you) if there is a lawful legal "gateway" to do so, and in practice this means at least one of the conditions in Schedule 2 of the Act has to be met. None of the conditions in Schedule 2 is engaged here, so disclosure to you would be unlawful. To obtain such information you would need a Court order. You can ask the police to investigate, or you can ask DWP to investigate, but you cannot obtain the details you seek on the basis of such information as you have posted here. Essentially, to answer the thread title, you have no real legal rights in this context.

    Edited to add: As others have posted, your mother's pension would have been taken in part contribution to pay for her care less an allowance of around £25 pw for toiletries etc - a sort of "pocket money". So what has happened sounds about right.

  5. loveahug

    loveahug Registered User

    Nov 28, 2012
    Moved to Leicester
    For the time your brother was an appointee was your mother in a care home? If she was and had no other assets then her pension would have been contributing to her care except for an allowance of approx £23 per week for toiletries and clothes. Would this explain it? Even if she had been self funding the pensions may have been mitigating the weekly care cost with the balance coming from her other assets. I'm not defending your brother but know of a similar situation where someone was accused of stealing their mother' pension when it was all going towards the cost of her care home.

    Good luck and I do hope it all turns out right in the end....
  6. notsogooddtr

    notsogooddtr Registered User

    Jul 2, 2011
    I'm not sure you have any rights,the data protection act is intended to protect us all,as appointee your brother has the right to discuss your mother's affairs with DWP.As others have said any pension or pension credit will have been included in the financial assessment and contributed to the cost of care.Have you asked your brother?That might be a good place to start.
  7. happyharry

    happyharry Account Closed

    Jan 20, 2015
    Happy Harry replies:

    Thank you, every one.

    To clarify my mother’s circumstances, she was first admitted to permanent care in a nursing home when her incapacity through dementia was diagnosed in 1999.

    She moved to a second dementia care home where she spent her last 5 years until her demise in 2014. Both the manager there and the Local Health Board have told me the LHB paid all the fees. From BigBrother’s own arithmetic, he paid Mum on average £146 per year, and over the 10 preceding years, he paid altogether £1,200, i.e. average £120 per year. If Mum’s needs were being taken care of by that pittance, even so, somebody had claimed pension credit for her, and it was paid into BB’s bank with her state pension.

    A part of my problem is that, of all his brothers, BB has always taken greatest pleasure in tormenting me. He refuses to give me any documents to prove these figures are true, so they might be a pure invention giving him the means to control my emotions and mind, as of old. He did a similar thing when he pretended to have information, then made a point of withholding it from me, about the circumstances in which our youngest brother died. It is my unhappy experience that when his provocation drives me to seek retaliation, I end up regretting it.

    Mum had a long and desperately unhappy and fraught marriage with out father, only staying together for the sake of the kids. BigBrother knew, from me, that Mum had asked me to ensure “they” did not inter her in “his” (our father’s) grave. Perhaps jealous that Mum had entrusted me with this information, and despite knowing of it, BB interred her there anyway. I had to find this out from the cemetery staff, when BB asked me to sign my consent for a tombstone he identified by a serial number. Despite his mean streak, the funeral cost more because of his disrespect for Mum’s wishes, since she had wanted her ashes to be scattered. I realised, with hindsight, that he had also engaged MB to deceive me into expecting they would be, giving himself time to see to the burial. I am therefore sure, upon reflection, that he put Mum in the wrong grave to vex me for the foreseeable future, intending I should not visit Mum’s resting place with a peaceable mind.

    I replied I would consent to the tombstone if he agreed to inscribe it in memory of Father as well. He refused and there was a long impasse. I applied and got a grant of letters of administration in the hope of giving an air of respectability to a grave our parents share together only because of a domineering son.

    When I got the administration, the DWP advised me they had overpaid and would hold me responsible. I tried to persuade BB to provide the clarification the DWP required, telling him Mum’s estate would be decimated, if it was true what the DWP told me would happen if they didn’t get an answer. Risking all, he withheld any and all relevant info, so I gave the DWP the little I could glean from BB’s figures, as I have given them here. To my surprise, the DWP have recently replied that all was well and have let the matter drop. However, believing I ought to have minded my own business, MB now hates my guts. BB has succeeded in finally destroying that brotherhood, though I had been enjoying a purple patch with MB before this came up.

    The overpayment claim might have been the DWP’s way of using me to check BB’s past conduct to see it had not been too bad. I say this, because the DWP have now told me Mum’s pension had been suspended in 2009, and I believe it was while BB had informal control of it. He was appointed formally after the suspension, but the DWP will not tell me anything further.

    Under the rules, BB had to notify all next of kin that he was applying for appointeeship, but he did not do so. One of the purposes of the rule is to discuss suitability by those who would know of any deterrent. It is patently unjust and, in any case, contrary to the thrust of the Mental Capacity Act, to suggest that BB’s discussions with the DWP about his mother’s welfare ought to be protected from the natural concern of her other adult sons. A friend thinks the DWP know they ****** up and are depriving me of evidence leading to that conclusion.

    I deliberately pitched this post in a way I hoped would prompt an invocation of the strongest powers of the law by those with an interest in eradicating the exploitation of patients with Alzheimer’s. I did so because I am hopelessly lacking in confidence, tend to prevaricate and had reached a low point. I had hoped somebody would move for immediate police action for fraud and senior abuse.

    The consensus seems to be that an act to protect my able-minded brother’s privacy takes precedence over the protection of the welfare of vulnerable patients. I am certain the DPA was not intended to do this, and furthermore, that the legislature would never introduce a law inherently capable of emasculating another or other laws.

    I have written again, to the DWP, in the following terms:

    “My position is that, as a member of my mother’s close family and household, sorting out her affairs when she dies is a purely domestic function. As you know, the Data Protection Act 1998 does not apply to such activity because the legislature anticipates good sense in keeping the details of one’s friend’s and family’s personal and financial affairs.

    Furthermore, my position is that the DPA does not apply to the data of deceased persons, since it only protects the data that identifies the living individual. If my mother’s data required to be protected, it would be provided for under Article 8 of the Human Rights Act. However, legitimate enquiry into a deceased’s estate does not bring his or her memory, reputation, privacy and so on into jeopardy. There is nothing from which my mother’s details need to be protected as a result of my administration.

    However, since it is plain that the DWP relies on a notion of Data Protection, taking that as my starting point, the DPA actually provides a firm basis for me to make my enquiries, if according to the terms of that Act, any of the information I seek is personal data:

    Principle 1 of the Data Protection Act 1998, as it is conditioned by Schedule 2, Section 5(b), provides that the data controller’s processing of personal data will be fair and lawful if it - “is necessary…for the exercise of any functions conferred on any person by or under any enactment”. The relevant enactment is Part II of the Administration of Estates Act 1925, Section 25, which confers on me the function of administering all my mother’s estate. The processing in question is disclosure.

    I therefore expect an explanation as to the Pension Service’s position in relation to all the following questions about the payment of my mother’s pension:”

    I will post again if there is any progress in this matter, but I am not expecting much against a background of so much official resistance, supposedly in compliance with the Data Protection Act 1998. I believe the Act is inherently sound, but it suffers from weak regulation by the Information Commissioner‘s Office, which has almost certainly been captured by big business and public authority generally.

    Thank you again, everybody.

    Attached Files:

  8. Wirralson

    Wirralson Account Closed

    May 30, 2012
    #8 Wirralson, Jan 22, 2015
    Last edited: Jan 23, 2015

    The DWP isn't (or shouldn't) be relying on DPA98 to protect your mother's information. As you point out (and as I pointed out as well) the Act only relate to living persons. So Schedule 2 is irrelevant to disclosure of your mother's data, as your mother is deceased. They are (presumably) protecting your brother's personal data, so you would need to show that disclosure of your brother's data (his actions as appointee) was necessary to perform your duties as executor, (for example to complete the last tax returns). The "domestic function" argument isn't a runner here as what it is aimed at is (for example) parents keeping tabs on their child's mobile phone bill.

    The DWP does, however, have a duty of confidentiality to your mother which continues after death. The Pensions Service bereavement office made that clear when my mother died. While they discussed any outstanding pension, and would discuss debts/balances owing, and anything for tax purposes, the full details of my mother's pension history remained closed as I did not need to see them. Had I done so, they would have had to consider this in the context of the common law of confidentiality/information supplied in confidence.

    Now as an executor, unless there is a debt owing to the estate or owed by it as a result of your brother's actions, it is hard to see that disclosure of your brother's data as apppointee to you is necessary as distinct from something you wish. Was it the LHB or the LA that paid the fees? If the latter, the pension would be used to pay for the care. If your mother was on CHC or s117, different rules apply.

    Your point about a law "protecting your brother's privacy" taking precedence over protecting vulnerable patients, is, bluntly a bit of a red herring. There are clear gateways in Schedule 2 and Schedule 3, and disclosure is permitted if the conditions are fulfilled (as you recognise in your reference to Schedule 2). So unless you can make a case of necessity under AoEA25 or the relevant tax laws (for example), you are unlikely to succeed. Safeguarding and police investigations also allow disclosure to the relevant parties. So your statement is incorrect - DPA98 protects the information rights of living persons, but also permits safeguarding the interests of the vulnerable. But disclosure of any actions by the DWP in respect of your brother to you as executor or as son or brother is not likely to take place. I have to deal with this kind of thing for a living, and the reality is the Act is more balanced than you suggest.

    As DPA98 doesn't (now) apply to your mother's data, the ICO jurisdiction beyond stating that fact will (or should) be focused on your brother's rights. If, of course, you are alleging wrongdoing then Section 29 (3) is engaged in respect of any investigation by the police or DWP in respect of your brother's actions. You state that you ..."had hoped that someone would move for immediate polcie action for fraud or senior abuse". That has nothing to do with DPA98. Either you have sufficent evidence or suspcion to take to the police, or you don't. If you do, then take it to them, and let them investigate. The commencement of any police or DWP investigation would not automatically result in disclosure to you.

    Most of your concerns seems to be over your brother's past actions for their own sake, and that, I am afraid, will not be sufficient to allwo disclosure to you. If DWP suspended the pension and has taken other actions, they will probably be acting on legal advice over this. And if there has been investigation and DWP action, then that is sensitive personal data about your brother, even if he was found not to have acted improperly.

    (As someone who is and has worked for employers on the receiving end of ICO investigations in several day jobs, "weak" isn't an epithet I'd use. They tend to regard the Civil Service and NHS as a "target-rich environment".)

    Edited to add: The overpayment claim won't have been a method of checking on your brother's conduct. The estate is liable for any debts owed by the deceased to third parties. An overpayment is classed as a debt and the executor is responsible for settling it. That will be the only reason you were contacted. Very probably it was an automatically-generated process upon being notified of your mother's death.

    Further edited to clarify points about police investigation and DPA98.

  9. happyharry

    happyharry Account Closed

    Jan 20, 2015
    happyharry replies

    Thank you, Wirralson.

    Reply pending.
  10. Wirralson

    Wirralson Account Closed

    May 30, 2012

    At most the DWP may tell you details of what the payments made against your mother's pension account between given dates. But what it won't (or shouldn't ordinarily) do is tell you anything your brother. And for "executor" read "administrator" in my previous post.

  11. happyharry

    happyharry Account Closed

    Jan 20, 2015
    Happyharry is back after 9 long months

    At most the DWP may tell you details of what the payments made against your mother's pension account between given dates. But what it won't (or shouldn't ordinarily) do is tell you anything your brother. And for "executor" read "administrator" in my previous post.


    HAPPYHARRY REPLIES: First, to settle the debate about the DWP's refusal to give me information about my late mother's state pension because of the Data Protection Act 1998, they admitted their position had been mistaken. They apologised to me and agreed that the DPA does not apply to the data relating to a deceased person. Ultimately, they have told me as much as they can find in their records about the various payment arrangements that have been in place over the 15 years since Mother went into a residential care home. They have also supplied a copy of the Form BF56 upon which my Big Brother (BB) applied for an appointeeship to receive Mother's pension.

    From what the DWP has said - and as far as I understand the complexity of paying for care - in 2009, when Mother needed continuing health care, she was moved to a nursing home for it, and her care was paid by the NHS directly to the Local Authority. A new appointee was needed to receive her pension, so the DWP asked BB (my Big Brother) to accept an appointeeship, which he did.

    This is where my controversy with BB starts. First, he falsely stated on his application form (BF56) that, as required by the rules, he had discussed the appointment with Middle Brother (MB) and me, but he hadn't. Because of this, I didn't know of his appointment and I assumed, as I stated when I began this post, that somebody must be looking after Mother's interests and I trusted them to do right by her. Secondly, if there had been a discussion, I would have asked BB to explain why in the same form, he stated the bank account to be used is in Mother's name when in fact it is in his own name. Why this is important will become clear below. Thirdly, the same form also required him, among other things, to see to it that Mother got her personal expenses allowance. The amount would have been about £23 per week in 2009, rising to £25.50 per week by 2014.

    The payment of this PEA is at the heart of the matter that motivated me to start this post. I am Mother's personal representative by virtue of my letters of administration of her estate. In the informal account BB has drawn up (falsely claiming that I asked him to provide it instead of original bank statements) he blatantly admits to me that he was keeping Mother on a pittance. His case seems to be that, because he was merely acting as a helpful family member, his job was merely to receive Mother's state pension, but that he was not responsible to do anything else, such as pay it out to her. Because no contribution was due from her for her nursing care, her pension was accumulating virtually net in BB's bank account. Despite that, somebody had applied for a pension top-up, swelling the receipts even more. By the time Mother died, some £34,000 had accumulated. However, working from BB's own figures, instead of £25.50 per week PEA, he had been paying Mother £2.80 per week.

    Now that I am Mother's personal representative by virtue of my letters of administration of her estate, the bank statements about my mother's pension are essential for administrative purposes. However, the bank - as the DWP had done before - refuses my access to them because the account is in BB's own name. The bank says there are "data protection issues". BB refuses to give me access, saying that the records would only prove to me that his informal account is true.

    In August 2015, I began court action for an order that BB release to me the complete bank details of her pension account. This has led to a slow release of evidence about BB's attitude and his conduct, informally, of Mother's estate after she died. He states that the success of his appointeeship can be judged by the amount of money he accumulated. In answer to my claim that he had disposed of Mother's chattels without authority (power) to do so, he tried to defend himself by saying they were dilapidated. I have a note from the nursing home which records that he was "happy" for them to smash all of Mother's furniture and electrical items, suggesting that she had the same television since 1999. He also let slip that her clothes were ill-fitting and he suggested this was because she was old and infirm.

    I believed it was a matter for the civil courts because essentially, I cannot settle Mam's estate without hard evidence for its value. BB admits he kept back over £5000 during his own informal estate administration. He has made it clear that he didn't tell us about that money because he didn't want us asking for it at a time when he thought we were in financial distress. I am sure he was never going to tell us of its existence. However, he stated it was a contingency for unseen debts. When he handed that money over to me, he had not done any checks to eliminate such debts. The reason such a debt might manifest is that Mother would have been required to contribute to her nursing costs once her bank balance rose above £24,000. To repeat, by the time Mother died, some £34,000 had accumulated, but BB didn't need to declare it because his estate administration was purely informal.

    However, I have now received a letter from BB enclosing a cheque for more money he had "missed" when doing his account. This has allowed me to check the arithmetic he has given me.

    It is the last straw. The letter and the cheque are infuriating because it is now clear to me that BB had paid his mother nothing. The only money he sent her was a cheque for £200, but the home returned it to him unused because within a matter of days, Mother had died. It turns out that Mother's personal expenses were being met from a sum left over from her previous home and sent to her new home. Of this, the new home had paid her only £1100 during her last 4 years and 4 months, i.e. she had been getting £4.85 per week on average from the home and nothing from her son.

    I have a note from Mother's earlier medical records in which she is recorded as being deeply concerned with a photograph in her room of some children. She kept telling the doctor that they have no food. I am heartbroken that my mother might have had to suffer the indignation of being kept on less money than a dog, but had no way to express herself due to her locked in syndrome.

    I want to go to the police about this. It may be that, although BB did not steal from her at the time, he deprived her of the benefit of her pension, unknown to MB and me, intending to have it for himself when she died. It is only by coincidence that I wanted to see to it that Mum and Dad had a proper tombstone, and obtained the letters of administration for that purpose. It is equally a coincidence that I then heard from the DWP requiring me to answer for matters that only BB knew about.

    Now that so much about his dealings have come to light, I want him properly investigated and I believe he should be punished. I have a decision to make what to do now. Somebody, please help.
  12. canary

    canary Registered User

    Feb 25, 2014
    South coast
    #12 canary, Nov 8, 2015
    Last edited: Nov 8, 2015
    Deleated as could be confusing
  13. Pickles53

    Pickles53 Registered User

    Feb 25, 2014
    Radcliffe on Trent
    All I can suggest us that you go to to the police and tell your story. If BB has broken the law, they will tell you what can be done to investigate the issues you raise. It seems fraudulent behaviour that the account was in his name, maybe HMRC would be interested?
  14. fizzie

    fizzie Registered User

    Jul 20, 2011
    Police, HMRC and DWP copy them all into the information
  15. Raggedrobin

    Raggedrobin Registered User

    Jan 20, 2014
    There is one thing I don't understand about your situation. I don't know anyone who gets 'paid' their allowance in the nursing home. For my mother, for example, I buy the odd things for her, out of her allowance and the nursing home pays for things like hairdressing for her, which comes out of petty cash I have given them. But my mother, because she has dementia, doesn't get given any actual money. So I don't understand why you say she was being deprived of her personal expenses allowance, as I think most people with dementia don't actually get given it, it is just used on their behalf and indeed my mother's needs don't use it fully.

    The starving children in the photo thing is just a classic dementia illusion; you mother wouldn't be starving if she is in a nursing home, the cost of that would be paid for in her care home fees and has nothing to do with her personal allowance.

    I don't get that your brother was paid your Mum's pension and didn't have to pay it out again to the care home. When local authorities calculate the fees they will pay, they include the state pension. So for example, I am in charge of my mother's accounts but the pension comes in and is then removed by direct debit by the care home as part of their costs. Have you checked that that money hasn't been paid out again?
  16. Beate

    Beate Registered User

    May 21, 2014
    I'm also a bit confused about your mother's personal allowance. Usually a float is given to the care home which they can use for approved expenses like for example hair cuts or newspapers or whatever that person would want. You say that money has been paid from a float that still existed from the previous home. To establish whether she was deprived of her money you would have to look into what it was spent on and whether it was on purpose not used on things she might like to have had. Some people don't need much anymore in a care home, as most needs are already catered for.

    I can't comment on the other issues as I find them quite complicated.
  17. happyharry

    happyharry Account Closed

    Jan 20, 2015
    happyharry replies:


    happyharry replies:

    happyharry replies: Thanks, Pickles53, fizzie, Raggedrobin and Beate (and canary, for taking an interest). Where I have referred to payments "paid" to my mother, I mean payments made on her behalf by BB or by the home. She was indeed incapable of using money.

    The whole matter of ?who pays and ?how much is complicated as you all know. As I understand it, during Mother’s time at her previous care home, the Local Authority were her appointee. The DWP paid her pension directly to the Local Authority, who subtracted an amount for Mother's care and residence and paid it to the home. (I do not know what has happened to any “surplus”, and to some extent, my only job is to value her estate upon her death, not to go back in time indefinitely.) When, in 2009, Mother moved to a nursing home (the new home) she became a continuous care patient and ALL her care was now funded by the NHS. (See Alzheimers' booklet "When does the NHS pay for Care?"). At the same time, the Local Authority wanted somebody else to be appointed to receive her pension and asked BB to accept the role, which he did. Despite Mother’s new status as a non-contributing patient, she was still entitled to a state pension, which was paid in full as usual, and indeed, someone applied for and got a means-related pension top up.

    The application form from the DWP stated the appointee must not mix his own money with the claimant's pension. The DWP had pre-written Mother's name in the box for the pension-receiving bank account, so when BB gave his own bank account sort code and number, but didn't amend the name in the box, it looked like the account was in Mother's name. However, he can accept payment into his own account, if he prefers. What is significant to me is that BB did not discuss his application with MB and me, so, even if I had known the bank account was to be in his name, not Mother’s, I could not have asked him why. Omitting a family discussion is a serious breach of DWP rules, but BB falsely confirmed there had been a discussion. When he signed his name to a false declaration on the form, he ignored the warning that he was risking prosecution.

    I do not know if BB has mixed Mother's money with his own, because he refuses any information to me direct from his bank, and, to repeat, the bank will not cooperate, either. BB has given me a hand-written balance sheet that he says he copied out from the bank statements, and, except for a receipt for £350, his word for it the only thing I have to value Mother's estate. However, BB's conduct of Mother's pension can be understood
    from this balance sheet.

    Hence, according to his own figures, during the 4 years and 4 months BB had been Mother's appointee, his average payment to the care home for her daily expenses amounted to 1 month's pension per year. READ THAT AGAIN. About £140 per year. If it is at all possible to put this into perspective, Alzheimer's fact sheet 431 states that the present Personal Expenses Allowance is £25.50 per week. It also says this is "the minimum amount of a person's income that must be left to them each week, to spend as they wish." This is for the sort of items to which Raggedrobin and Beate refer. I understand that my mother could not state her wishes, and so her expenses would likely be minimal. However, in the meanwhile, the unspent pension was accumulating in BB’s bank account (which the bank tells me by phone is a Platinum Visa Card Account). By the time of Mum's death, the balance stood at some £34,000.

    BB retained £5000 to meet an unseen debt, which might have been due because of that accumulated balance. According to Alzheimer's fact sheet 431, if there are savings of more than £24,000, the patient has to pay all her care home fees. Obviously the matter is complicated and so BB would err on the side of caution. However, he says he did not run up any debts.

    BB has now sent me another cheque for £600-odd, saying this was a pension credit he had overlooked when he did the above-mentioned balance sheet. I have pointed out to him that he prefers to send me money than reliable information about money. However, in this case, I can figure out where the money actually comes from. It has to be subtracted from the amount BB originally claimed to have sent to the nursing home for Mother's daily expenses. The only possible conclusion is that BB had spent NOTHING on her daily needs from her incoming pension.

    I understand Raggedrobin's point about an illness of mind causing delusions, but it is plain that my Mother was capable of sad feelings inside. Remember, BB says her furniture was dilapidated and her clothes didn't fit.

    Furthermore, the cheque includes money returned by the nursing home from the sum of £1400 they had received from Mother’s previous care home in 2009. The only money the new home spent on her during the same period of 4 years ws £1100 , i.e. £4.85 per week.

    I have been in touch with the home several times and sent them my sealed grant of letters of representation. I have given them an opportunity to clarify matters for me. They twice replied in writing to say there had not been any account kept for Mother's money and that they were nothing to do with the balance of her estate when she died. They later acknowledged there had been an account, but told me on the phone that it was privileged information that only BB could know. They said the whole matter was in their solicitor's hands but did not give me their solicitor's contact details. I wrote them again before proceeding to court but they have not replied.

    Seeing the Court has stayed my claim against BB to make time to get more information, I have written the nursing home again. It is likely I will have to begin separate proceedings against them also for an injunction for the release of financial details in their possession. That will cost the estate money and me more stress to my health.

    In regard to Pickles53 and fizzie's advice to copy all matters to the various authorities, I have to repeat what I posted in January 2015: I have already lost MB's friendship because he thinks I ought to have let BB keep control of everything. He is especially angry that I put his inheritance at risk of being clawed back by the DWP, who thought they had overpaid Mother's means-tested benefits. I have no idea why the DWP let their claim go. I do not want to risk MB’s money being clawed back by the NHS or the Local Authority instead, if there is any chance I can win back MB's friendship. Those who have followed this thread from the beginning will know I had obtained letters of administration only to buy a tombstone for Mum and Dad, since when, I have been dragged further and further into a can of worms left by my Big Brother, who has astonished me with his constant lies and deception.

    I am happy to be guided by your comments. Keep them coming, please.
  18. Pickles53

    Pickles53 Registered User

    Feb 25, 2014
    Radcliffe on Trent
    #18 Pickles53, Nov 10, 2015
    Last edited: Nov 10, 2015
    It seems to me you are being pulled in two opposite directions and in the end will have to decide between them. I can see how worried you are about the impact on your relationship with MB if you report your concerns to the authorities and your actions result in him getting less money from your mum's estate, but I can't see any other way that you can put your own mind at rest about BB's actions (or indeed work out the true value of your mum's estate based on the information you have so far.) Sorry if I have misunderstood, but was your mum's pension actually paid into your brother's own account (same sort code/account number)? If so it is going to be very difficult to work out how much of that money was actually spent on your mum and how much remains to be part of her estate.

    (How much should have been spent on your mum's needs eg clothes while she was alive is a separate issue. I can only say that when my mum was in a care home and I was managing her finances it was very hard to spend anywhere near the £23 a week as she refused pretty much everything except occasionally having her hair done and chiropody. So her pension built up too.)

    I am assuming that holding letters of administration means you have similar responsibilities to an executor, which includes finalising your mother's affairs with HMRC and confirming that no tax is due or owed to your mother's estate. They can take a while, but if you don't contact them at some point they may contact you. If you think that BB may not have given you accurate figures, you don't want to put yourself in a position where it could appear that you have colluded in his actions (by not reporting what you think is wrongdoing).

    As you are responsible for settling your mother's estate, my understanding is that you have a legal obligation to ensure that the estate is accurately valued before the beneficiaries are entitled to receive their share. Assessing the value includes dealing with any debts or liabilities, so if any money is legally due to the NHS or LA or anybody else then you can't in my opinion ignore that.

    Raising your concerns with the relevant authorities may result in money which should not have been paid out bring 'clawed back' but equally may not have any effect at all. If your mum was receiving CHC, then her care would have been fully funded and her state pension would not have been affected. (Not sure about pension top-up credit as my mum never had this, but DWP will know whether this is still paid when someone has CHC funding.)

    It is a dreadful dilemma. Once you make something 'official' it's out of your hands, but it seems that trying to sort this out informally has not worked. Would it work to say to BB that you have no choice but to report your concerns unless he gives you the actual bank statements that you need?

    My only other thought is to seek legal advice from a solicitor. This may not be as expensive as you think and the costs would come out of the £34,000+ as they are costs related to your duties in winding up mum's estate. Perhaps a formal letter from a solicitor requesting the information would get his attention? Solicitors have a duty of confidentiality to their clients, though they can and should inform you if your legal obligations and they can't of course carry out instructions which are contrary to law.
  19. Raggedrobin

    Raggedrobin Registered User

    Jan 20, 2014
    Thanks HH for giving us some more info to go on, that does clarify quite a loy.What a business. It must be very frustrating that BB won't let you see the bank statements and foolish or clever of him to mix up his Mum's account with his. I find it much easier and transparent to keep my Mum's accounts separately! So he wants to hide something. Is it fraud, or is it just that he juggled with your Mum's money, borrowing from it for his own affairs or even investing it elsewhere.

    I wouldn't have thought that pension credit would be payable once you have ch funding but if the authorities have decided not to take it back, that makes one bit easier. re the large pension accumulated, once you are on chc, don't your savings cease to apply? I don't think it is means tested like LA help? Someone will correct me if I am wrong?

    To play the devil's advocate, what about if you did just go along with BB's accounting notes for your Mum's money at death, what would happen then? You can roughly calculate how much she had yourself, working out the state pension, the pension credit and a small amount of interest. So if you saw his figure as correct, then you could all move on, including you keeping your relationship with your MB. I can understand he must have felt frustrated by what you did, rightly or wrongly and I think you need to think about whether continuing to prod at this is going to end your relationship with both your brothers and make no difference to the finances. If your BB was being a bit dodgy about it, he will have covered his tracks but you all presumably get a share of the amount that you roughly know to be there, so is it worth weighing up the cost of following this up?

    I sense huge anger in your posts, and I can understand that, but as I have sometimes said to other posters, I believe anger is often really grief that has been missdirected into other issues. Maybe I am wrong to suggest this, but you must be using a huge amount of energy on what I suspect may be a futile attempt to prove that there has been wrongdoing by your BB and also the care home. I think maybe it is worth rethinking what really matters, having a relationship with MB, at least, getting your inheritance out of the way and being able to grieve properly for your mother? Just a thought, sorry if you feel I am speaking out of turn but I feel someone has to say that to you.
  20. happyharry

    happyharry Account Closed

    Jan 20, 2015

    Thank you, Raggedrobin and Pickles53. You are absolutely right in all your observations, and Pickles53’s analysis of my predicament is spot on.

    There had been a third way for me, which had been to have done and said nothing, and "let nature take its course". After many moons had passed, both brothers would have agitated for the distribution of their inheritance, gone to the probate Court for the revoking of my letters of administration, but, would have had to discharge the burden of proof that my unending delay was unreasonable. I believe I would have succeeded very much on the grounds invoked by Pickles53 - the absence of proper information essential to finalise the estate administration in accordance with the law. That information is very obviously available from BB but he withholds it as if he were playing a game. I will return to this below, in view of Raggedrobin's suggestion of a solution by going along with BB's informal data.

    No doubt, you will appreciate that I had to act directly because I wanted and still want some certainty, and the peace of mind that comes with it, which, indeed, I made a part of my court claim against BB on behalf of MB and me.

    The facts about all the funding issues - care home fees, continuing NHS care, the patient's contribution and pension top up - are difficult. Even the Alzheimer's fact sheet "Benefit Rates and Income Savings Thresholds" is ambiguous at the paragraph headed "Paying for Care". I cannot work out if the upper threshold (£24,000) applies to care home fees or NHS continuing care fees, or both.

    Apparently, means-tested pension top-up is still claimable by residents in a care home or nursing home.

    Yes, I agree, Raggedrobin: it is a relief that the DWP have abandoned their claim to overpaid pension credit, and Pickles53 understands why I am reluctant to "risk it all again" by awakening any interest of the NHS in the same surplus. HMRC are in the loop because one has to send in a tax return with an application for letters of administration. The estimated estate value I declared falls far below the threshold for inheritance tax.

    It is a good question - whether there has been a fraud, which is the only term to describe the activities Raggedrobin suggests. That is because BB's only authority was to receive Mother's pension. If push comes to shove, BB can be held very strictly to that rule. However, matters would be rather less complicated if BB had had a power of attorney: as soon as Mother died, and that power ended, his banking activities with Mother's money would become open to enquiry. However, ostensibly, he has acted merely as a helpful family member and the bank that received Mother's pension - in his name - deems the principle of his privacy to override the principle of transparency in fiduciary relationships. That’s banks for you.

    Knowing this, and since I began the court action against him for an injunction for the release of bank information, BB has begun to imply that Mother's money and his own money were indeed mixed up in that account. I believe it was prejudicial of the judge to assist BB in this, by suggesting that BB might object to my finding out how he had spent money on his wife.

    As Pickles53 has observed, I cannot ignore the possibility of outstanding debts. I bear personal responsibility to pay them from my own resources, whether or not I settle the estate on the unproven word of BB. That is how I replied to the judge. I emphasised my predicament by pointing out that BB's own view was that a substantial unseen debt might yet manifest, for which he had retained more than £5000. It was not possible for me to ignore that and share that money out as BB now wants. I also pointed out that one of the cheques BB wrote to MB and me, distributing some of the surplus pension as our inheritance, was written against an entirely different bank account, suggesting either a transfer, or that BB used/uses Mother's money as if it were his own. I am therefore claiming access to any and all BB's accounts to which transfers have been made of Mother's pension.

    This claim should be a slam-dunk, but the judge does not think so. He was itching to summarily dismiss the application on his stated grounds that, as far as he can see, I have no claim. However, on the face of these submissions, I believe there are over-riding good grounds for access to the original bank records, and no need to mention BB had sought to defraud MB and me of the said £5000 - a matter however, that the judge ignored.

    Running against the judge’s volunteering a defence on grounds of BB’s privacy, BB has said, in a defence statement, that the account in question did not exist before his appointeeship. The implication is he opened it to receive Mother’s pension. Also, he had stayed silent when, in October 2014, I invited him, as neutrally as possible, to declare if any of his own assets had become included with Mother's, pointing out that "delay (in his responding) destroys equity".

    It is also a strong argument that if a person mixes his own money with that of an elderly and infirm person, he cannot have any real prospect of long-term privacy. BB acknowledges that he opened his house to those wanting to visit Mother when her time seemed to be up. Also, that a manipulator of another’s money, who bungs in a tenner of his own so as to fend off legitimate enquiry should not receive the sympathy of the court in relation to the privacy of that account.

    BB can be relied upon to be one step ahead. He has stated in his defence that he does not want me to know how he banked Mother's pension for fear I am fishing for the slightest pretext to get him into trouble. No doubt, he would say the same thing to the police if they paid him a visit.

    In that case, why has BB sent me a cheque for another £600-odd with enough information for me to prove, arithmetically, he had spent nothing at all of Mother's pension on her needs? Why did he say that Mother's furniture was dilapidated, but that there was £34,000 of her money in his bank? I think it might be that BB knows he has done wrong and wishes to be found out and punished.

    Before I respond to the notion that I acquiesce to BB's conduct and data as a way forward to settle the estate, I need to explain the outcome so far of my court application.

    The judge has stayed my claim for various elusive reasons and issued a court order that, among other things, BB must re-write his financial balance sheet. I have rejected this balance sheet as nonsensical and therefore irrelevant, but BB has adduced it as evidence in court and said it is “substantially correct”. That is how he defends against my claim for access to the original bank statements from which he acknowledges it to be a copy.

    I suggest the judge is ordering BB to tamper with this piece of evidence prior to ruling it in as relevant. I say this because the judge has given BB very precise directions about how he wants to see the balance sheet re-written. One detail orders BB to include new data not from his bank records. That gives the re-written item a radically different nature, in that it cannot then be said to be a copy of the bank records. This transformation will assist the court on BB’s behalf to dismiss my claim to need the original bank statements. The new document will be an original piece of documentary evidence written to the satisfaction of the court, despite the court having procured from BB essentially the same information as before. However, my claim to need the original bank statements is based on a longstanding rule of evidence, that where an original record is available, it is the only admissible evidence. The re-written document becomes the original, whereby the grounds of my claim will be vitiated. I suspect I will be told to accept it as both valid and relevant for estate valuation purposes. If this is not so, what service is it to the court to obtain the re-written balance sheet when - like me - the court has no evidence upon which to judge its accuracy? Naturally, I have appealed against these orders. Generally, I suspect an order to re-write any documentary evidence is highly prejudicial.

    There being a number of reasons to think this judge was helping my claim down the plug-hole, I wrote to BB seeking a no fees agreement that I discontinue my claim (i.e. withdraw it from court completely). I proposed to settle everything by sharing out equally the present balance of the administration account - which largely comprises the money BB has handed over based on the unproven figures in his balance sheet. I told him that I want to put the matter behind us, especially as my claim - and the stress it is causing - will otherwise extend over Christmas to the discomfort of our families. My proposal puts to an end any claim for access to BB's bank accounts, to the part of the claim for him to pay the court fees - some £600 - and to the part of the claim for him to pay all the estate disbursements - £500 - spent since August 2014 trying to get reliable information from third parties. In the hearing, at which BB was present, I had told the judge I reserve the right to plead the allegation that BB had defrauded the sum of £5000 from MB and me, because, at face value, it would be grounds for access to his bank account if my other grounds failed. So BB knows my proposal to discontinue against him also eliminates any hearing of that allegation. By discontinuing, therefore, I intended to sink all these issues without trace.

    BB has refused this offer twice. He quibbling my disbursements - though they would be no longer an issue - and wanting me to promise a full and final settlement, which, I explained to him, is unlikely to be approved by the Courts.

    The offer was an alternative to appealing and, because the latter was subject to a short dead line, I could not extend it for long. The offer is therefore a dead duck in the water, and I have sent in the very large cheque for the additional proceedings.

    It is in this context that BB now sends the additional cheque for the sum of £600-odd, saying he had missed it. It is as if he wants to suggest there are good grounds for continuing against him as one who has continually stated there to be no money left yet has gone on to prove that is not so. If you go right back to my post of 22 January 2015, in my third paragraph, you will see that I have outlined BB’s habit of gaining control over me (at least) by withholding or pretending to withhold something of value to me. Alas, I have to consider the possibility that his unending deceit and refusal of ordinary cooperation is a part of a larger picture of game-playing, which, however, has reached pathological proportions. The man might need a doctor, not a judge, or even a policeman.

    I have therefore written to MB to alert him that I will phone him soon to discuss this matter. Up until now, he has shrugged off any need of comment, suggesting that what he says probably doesn’t count for much. It is time for him to get off the fence, as I am faced with decisions I ought not to have to make single-handed.

    I took up this thread anew because I was in need of hard advice about how to convince the police that there might be a matter for them. I notice Pickles53 has thought I could go to the police and tell my story, but do they have the time, staff and inclination these days for a complex matter? I feel it would be all too easy for them to say go to your solicitor. I think a part of this problem is that I’m aware that fraud is somewhere between a crime and a civil tort.

    Well, I will let you all to your sleep now, as there are some things that can’t be answered by other folks. But thank you, everybody.

    It will be alright in the end, and if it’s not alright, it’s not the end.
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