Summary: Miss R complains on behalf of her mother, Mrs C, that the Council delayed arranging her permanent residential care placement. She also says it failed to respond to her queries and to agree changes to its deferred payment agreement. She says this caused injustice to Mrs C who was unsettled at the interim home and to the family who have spent two years attempting to move Mrs C causing distress and trouble. The Council was at fault for delay in moving Mrs C and for its failure to pay Mrs C’s care fees while it was in dispute with the family over a deferred payment agreement. This caused injustice to Mrs C, Ms R and Mrs S. The Council has agreed to pay them sums in recognition of the injustice caused. It has also agreed not to withhold payments to care homes in similar circumstances.

The complaint

1. Miss R complains on behalf of her mother Mrs C, who has dementia, that the Council was at fault for:
1. an inexcusable delay of nearly a year in finding Mrs C a place in her chosen permanent care home;
2. Poor communications with the family; and
3. A refusal to agree changes to the Council’s standard deferred payment agreement which had been recommended by the family’s lawyers.
2. Miss R says this has caused Mrs C and her family injustice in that Mrs C was kept for a year in a care home further from her home than the family wanted where she lost touch with her friends and became depressed.
3. Also, Miss R and her sister, Mrs S spent considerable time and trouble attempting to get the Council to move her. Thereafter, she says that she and her sister phoned the Council frequently chasing assistance and in the interim, she lived in a temporary care home which was stressful for Miss R and her siblings and unsettling for Mrs C.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I spoke to Miss R and, using the information she had provided, wrote an enquiry letter to the Council. I considered their response and any relevant law. I then began to write my draft decision. I spoke to the Council again about the ongoing dispute while writing the decision.
7. Miss R and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

8. The (Choice of Accommodation) Regulations 2014 (SI 2014/2670) set out what people should expect from a council when it arranges a care home place for them. It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the particular provider or location, subject to certain conditions.
9. The council must arrange to accommodate the person in a care home of his or her choice provided:
• The accommodation is suitable for the person’s assessed needs;
• To do so would not cost the local authority more than the amount in the adult’s personal budget for accommodation of that type;
• The accommodation is available; and
• The provider of the accommodation is willing to enter a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions.
10. The duty for councils to provide residential care is set out in the National Assistance Act 1948. The Act requires councils to meet the cost of providing the care in the first instance, before carrying out a financial assessment of the resident to determine what proportion of the costs the resident is liable to pay themselves.
11. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it must follow these rules when undertaking a financial assessment to decide how much a person must pay towards the costs of their residential care.
12. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
13. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
14. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt that permanent admission is required. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014 set out charging rules for temporary residential care. When the Council arranges a temporary care home placement, it must follow these rules when undertaking a financial assessment to determine how much a person has to pay towards the costs of this stay. The Council can either charge the person under the rules for temporary residential charging or treat the person as if they are still living in the community (i.e. the non-residential rules for charging).

Deferred payment agreements

15. Many elderly people have little ready money but have an asset, such as a home, which could be used to pay the costs of their care. In order to lessen the stress of selling the property at a difficult time, the government has passed legislation requiring councils to offer ‘deferred payment agreements’ (‘DPAs’). (Care and Support Statutory Guidance, 9)
16. Where someone is resident in a council’s area, requires care in a care home, has an asset worth above £23,250 which is not occupied by a spouse or dependent relative, councils must offer them, or their representatives, a DPA. (Care and Support Statutory Guidance, 9)
17. Councils can only refuse to enter into such agreements in certain limited circumstances such as where they cannot secure the debt with a first charge against the property or where they or their representatives refuse the terms and conditions of the agreement. (Care and Support Statutory Guidance, 9)
18. Councils can charge service users for residential care. Before doing so, they should carry out a financial assessment to see what, according to a standard formula, they can afford to pay. Where a service user has an income, most of this, apart from that required to cover necessary expenses at their home address and a weekly living allowance of £24.90 can be used as a contribution towards the fees. Where a service user has a property, this too can be used to pay for care costs.
19. The Deferred Payment Scheme (DPS) is designed to help residents in care homes who have been assessed as having to pay the full cost of their residential care due to ownership of property/land and have savings of less than £23,250 but are unable to make payments in full as their capital is tied up in their property/land if a resident has a property which is being disregarded during the first 12 weeks of care, or if they have entered into a deferred payment agreement (where the council has contracted with the care home, pays the difference between the assessed contribution and the full cost, and places a charge on the resident’s property to recover its costs later when the property is sold.
20. In these cases, a council can apply a ‘12-week property disregard’. This gives a period of 12 weeks in which the service user’s property is not considered when calculating their financial contribution towards their care. This will give them an opportunity to sell their home if their stay is permanent or prevent them from being charged unfairly if the stay turns out to be temporary.

What happened

Home 1

21. Mrs C lived in the Council’s area. Her daughter, Miss R, lives abroad. Mrs C is elderly. Until late 2018, she lived at home and paid for the care she needed privately. By 2018, Mrs C had dementia and had begun to wander away from home after becoming confused. She was picked up by the police on several occasions.
22. Miss R and her siblings asked the Council to arrange a package of care for her at home. The Council assessed her, agreed she was eligible and arranged a care package. However, as Mrs C’s condition worsened, the family asked the Council to arrange for a place in a care home.
23. The Council initially refused as it found Mrs C’s needs could be met at home but, soon afterwards Mrs C wandered away and was found by the police the next day 10 miles away. The Council arranged an emergency entry into a care home, Home 1. The family always made it clear that they wanted Mrs C to go into another home, Home 2, on a fulltime basis.
24. The Council assessed Mrs C’s finances and determined she was a self-funder.
25. Mrs C then wandered away from Home 1 on one occasion. Because of this, and because the home was too far from Mrs C’s home and friends who found it difficult to visit her there, her family wanted to move her.
26. On 26 February 2019, Miss R’s sister, Mrs S, formally asked the Council to move Mrs C to Home 2 which was closer to her house. Mrs C’s social worker, Officer O, agreed.
27. The Council’s care record shows that the Council took steps to move Mrs C in March 2019. On 7 March 2019, Officer O asked the Council’s social services panel to arrange a 12-week property disregard and a deferred payment for a placement at Home 1. This was approved.
28. In mid-March 2019, the placements team emailed Officer O to tell her that there were no available places at Home 2 at that time. Officer O contacted Miss R in April and asked her if she still wanted Mrs C to go to Home 2. Miss R confirmed that she did. Shortly thereafter, Mrs C again wandered from Home 1 and was found by the police in the local town.
29. On 13 May 2019, the Council’s care record states that Officer O said she had spoken to a representative of Home 2 who said there would be spaces available at the end of the month.
30. In mid-May, Home 2 assessed Mrs C and agreed to take her. The manager asked for the property disregard to be agreed. The manager contacted the Council on several further occasions in June and, for the last time on 1 July 2019, again asking for the funding to be in place and saying that a room was available.
31. The record shows that Officer O made an application for funding on 1 July 2019. This was approved by the panel on 10 July 2019. There is no record of the Council informing Home 2 of this at the time.
32. The records show that, at this time, the Council sought to apply the property disregard while Mrs C was at Home 1. The family said this would not be fair as Mrs C was still in temporary accommodation at Home 1 and the disregard should only be applied when she moved to Home 2. The Council accepted this.
33. Officer O told the family in August 2019 that the property disregard would come into effect when Mrs C moved into Home 2 and that she was on the priority list for a placement there. The records show that the family threatened to complain about a lack of progress at around this time.
34. In September 2019, Officer O was away from work for three weeks. At around the same time, it seems, Home 2’s manager left.
35. In early December 2019, Mrs S again contacted Officer O and asked her to explain why Mrs C had not been moved. Three days later, Officer O responded and told Mrs S the Council had not heard from Home 2 that there was a vacancy.
36. Mrs S made a formal complaint to the Council on 13 December 2019 complaining of Officer O’s failure to respond to requests for information and the Council’s failure to move Mrs C.
37. Two days later, Miss R phoned Officer O and said Mrs S had spoken to Home 2 and the manager had said there were, in fact, rooms available and that Mrs C was not on any waiting list. She said she intended to complain to the Ombudsman.
38. The Council responded to the complaint on 24 December 2019. It apologised for the delay in moving Mrs C and said places were available and that she could be moved that day but for the Christmas holiday. Mrs C moved to Home 2 on 31 December 2019.

Deferred payment agreement

39. The Council was required to offer Mrs C or her representatives a deferred payment agreement. It did so. The family said they wanted such an agreement. And asked for a copy of it. They sent this to their lawyers.
40. Mrs C was not liable to pay fees during the first 12 weeks at Home 2 because the Council had agreed the 12-week property disregard. Home 2’s finance department wrote to Miss R at the end of March 2020, when the disregard period was drawing to a close, and said funding must be in place before it ended. It asked them to arrange payment with the Council or sell Mrs C’s house before then.
41. The family say they agreed to the idea of a deferred payment agreement but, on legal advice, objected to the Council’s standard agreement. They asked for various terms to be changed.
42. Initially, the Council refused but, in September 2020, it said it would consent to changes approved by an independent solicitor. It said the family would have to pay the Council’s legal costs which would be approximately £750.
43. The family refused. They said that, as the original contract needed amendment, the Council should pay the costs of improving it. The Council said it would not pay. There was a stalemate.
44. By March 2021, Home 2 was owed nearly £40,000 in fees. In March 2021, Home 2 informed the family that, unless the fees were paid in full by mid-April 2021 and a plan for future payment agreed, it would evict Mrs C.
45. In early April, Miss R contacted me. I contacted the Council and spoke to a senior officer who told me that the Council had now paid the outstanding balance of Mrs C’s fees. He also said the Council would pay any legal fees incurred in changing the deferred payment agreement.
46. The officer told me he had contacted Miss R and Mrs S and told them this. He also told me he had never considered it likely that Mrs C would be evicted.
47. The next week, Miss R contacted me and told me that the Council had still not confirmed that the fees had been paid or that the Council would pay for changes to the DPA.

Was there fault causing injustice?

Delay in moving Mrs C to Home 2

48. The Council has accepted that there was unacceptable delay and that it should have moved Mrs C sooner. It initially said in its apology to the family that this was caused by staff turnover though, in response to my enquiries, it said that the delay had been caused by a lack of vacancies at Home 2.
49. The care record shows that there were no vacancies in March 2019 but that the home informed the Council that there would be places available from the end of May. The manager pressed the Council for progress in May and June. The Council should have arranged for Mrs C to move at the end of May. I have seen no evidence to explain why the request for approval of the property disregard was not made until 1 July 2019. I therefore find this was delay. It could have been approved on 10 June 2019.
50. The manager contacted the Council several times in May, June and July 2019 asking for updates. He emailed on 1 July 2019 saying that the room was still available and that Mrs C could move in when the Council was ready. The records show that the arrangement was approved on 10 July. I have seen no record of anyone contacting the Council again until December 2019.
51. I find, therefore, that the Council was at fault for a failure to ensure that Mrs C moved to Home 2 during the summer of 2019. The Council should have been ready by the end of May.
52. The Council accepts it could have been ‘more proactive’ in checking with Home 2 during the summer of 2019. which I accept.
53. When Mrs S asked Officer O, in mid-December 2019, why her mother had still not moved, the officer said there were no rooms available. That same week, the manager of Home 2 told Miss R that there were, in fact, two rooms available. After upholding the family’s complaint in late December 2019, the Council arranged for Mrs C to move within a week. It said this would have been quicker but for the fact that Christmas occurred during this week.
54. In any event, if there had been no delay in approving the property disregard, Mrs C could have moved into Home 2 in mid-June 2019 but the continuing failure to move her caused additional distress.
55. While at Home 1, Mrs C was still isolated from her friends and family. She became depressed and isolated. The family suffered distress and took time and trouble in trying to make the Council act. Miss R says Home 1’s manager frequently phoned to discuss her mental health. However, there is no evidence Home 1 was unable to meet Mrs C’s everyday needs after the incident when she wandered off in February 2019.
56. The Alzheimer’s Society says, ‘Even as dementia progresses, people can lead active, healthy lives, carry on with their hobbies and enjoy loving friendships and relationships’. Mrs C lost connection with her friends and, Miss R says, became depressed. I am therefore recommending the Council should apologise to Mrs C and pay a sum in recognition of the injustice caused.

Deferred payment agreement dispute

57. Mrs C’s family have been in dispute with the Council from July 2020 to April 2021 over the wording of a deferred payment contract. The family took legal advice and asked the Council to change the wording of the agreement. The Council agreed but said that it would only do it if the family paid approximately £750+VAT for an external solicitor to amend the contract. Miss R says the family repeatedly pushed the Council for an exact figure without success.
58. The Council has a duty to conserve public funds and so it was no fault for the Council to seek to recover costs incurred at a service user’s request. Its agreement to change the contract was not an agreement that the contract as it stood was faulty, as the family said. But it was prepared to change it in the interests of reaching an agreement providing lawyers said the changes were acceptable.
59. However, the Council should not have made its payment of Mrs C’s fees contingent on the signing of the deferred payment agreement. The Council had paid Mrs C’s fees at Home 1 and had arranged the property disregard and continued to pay them at Home 2 until March 2020.
60. The Council knew that the family was willing, in principle, to sign a deferred payment agreement. It should have continued to pay the fees rather than withhold the fees and endanger Mrs C’s place at Home 2 while the dispute continued. The two processes should have been kept separate.
61. Its decision to make the payment of the fees contingent on the signing of the agreement was fault and it caused injustice not only to Mrs C and her family but also to Home 2 which was put to considerable time and trouble in attempting to recover fees to which it was entitled.
62. The Council has provided evidence to show that its officers were reasonable and flexible and attempted to reach agreement with the family about the DPA. However, its decision not to pay the fees in the interim put the family through considerable distress.
63. A senior Council officer told me he had always known that Mrs C would not be evicted. However, the family and the home were clearly not so confident. This was an injustice.

Remedy

64. The Council says the fees are now paid in full so the family has suffered no financial loss. However, it is clear that Mrs C, Miss R and Mrs S did suffer anxiety and distress.
65. The Ombudsman generally finds that, where a home can provide the care a service user needs, even if the home is not the one they want, the remedy for injustice should not be great.
66. In early 2019, the family told the Council that Mrs C wanted to move to Home 2 to make meeting friends and family easier. Mrs C has dementia but the Alzheimer’s Society says, ‘Even as dementia progresses, people can lead active, healthy lives, carry on with their hobbies and enjoy loving friendships and relationships’.
67. Miss R says Mrs C lost connection with her friends and, as a result, became depressed. I have therefore recommended a payment of £500 to Mrs C in recognition of the injustice caused by the delay between June 2019 when Home 2 said a room would be available, and December 2019, when she moved. The Council has accepted this recommendation.
68. Miss R and Mrs S also suffered injustice. They were caused anxiety and frustration by the Council’s poor communication and its decision to link the DPA to the payment of the fees. They spent a lot of time and trouble talking to the Council and Home 2.
69. I therefore recommended that the Council should apologise to both Ms R and Mrs S and pay them both sums in recognition of the distress caused and the time and trouble expended. This episode went on for over two years. In line with our guidance on remedies, I recommended payments of £300 for distress and £200 for time and trouble for each of them. The Council has accepted these recommendations.
70. I also recommended the Council write to the management of Home 2 and apologise. The Council relies on private sector providers to provide much of the care that it is obliged by law to deliver. By wrongly withholding payment, it damaged its relations with this provider and caused it considerable inconvenience. The Council accepted this recommendation.
71. I also recommended that the Council reviewed its systems and considered providing training to improve its communications. It accepted this recommendation.
72. I also recommended that, in cases such as this, where it placed a service user in a care home, the Council should adopt a new policy which states that, while disputes over DPAs are ongoing, it should continue to pay the care home’s fees. The Council has accepted this recommendation.

Agreed action

73. Within two weeks of the date of this decision, the Council has agreed to:
1. Send written apologies to Mrs C, Miss R, and Mrs S.
2. Send a written apology to Home 2.
3. Pay Mrs C £500 for the distress caused by delays in moving to Home 2.
4. Pay Miss R and Mrs S £500 each for the distress suffered and time and trouble taken as a result of Council fault.
5. Inform its officers that it should not withhold payment of care fees in cases like this.
74. Within three months, the Council has agreed to review its systems and consider providing training in communications.

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Final decision

75. I have found that the Council was at fault and that this fault caused injustice. The Council has accepted my proposal for a remedy. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman