Summary: There is no evidence of fault in the way the Council managed Ms X’s request for a Deferred Payment Agreement for the care charges for her late mother Mrs A.

The complaint

1. Ms X complains about the way the Council charged for residential care for her late mother Mrs A. She says the Council initially told her the overall cost of care would be about £50,000 but then said it would be £100, 000. She says the Council delayed in making a Deferred Payment Agreement. She also says the Council refused to help her family find alternative housing.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

3. I considered the information provided by the Council and by Ms X. We spoke to Ms X. Both the Council and Ms X had an the opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

4. 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 has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
5. The rules state that people who have over the upper capital limit (currently £23,250) are expected to pay for the full cost of their residential care home fees.
6. A local authority must disregard the value of a person’s main or only home for 12 weeks when they first enter a care home as a permanent resident (as well as in other circumstances which do not apply here).
7. Deferred payment agreements are designed to prevent people from being forced to sell their home in their lifetime to meet the cost of their care. Local authorities must offer them to people who meet the criteria below and who are able to provide adequate security.
8. The regulations provide that someone must be offered a deferred payment agreement if they meet all of the following criteria at the point of applying for a deferred payment agreement:

a) person is ordinarily resident in the local authority area or present in the area but of no settled residence; or ordinarily resident in another local authority area but the local authority has determined that they will or would meet the individual’s care needs under section 19 of the Care Act if asked to do so

b) person has needs which are to be met by the provision of care in a care home.

c) person has less than (or equal to) £23,250 in assets excluding the value of their main or only home

d) person’s home is not disregarded - for example, it is not occupied by a spouse or dependent relative.

9. The Care and Support Statutory Guidance says, “Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a local authority must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debts that take into consideration the capacity of the person as well as any illness or condition. …. Sometimes it is useful to consult with and engage with family members; however, family members may not have the legal right to access the person’s bank accounts. Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required”.
10. The value of a person’s home must be disregarded in some circumstances, including when the person no longer occupies the property but it is occupied in part or whole as their main or only home by any of the people listed below. The mandatory disregard only applies where the property has been continuously occupied since before the person went into a care home -

(i) the persons partner, former partner or civil partner, except where they are estranged

(ii) a lone parent who is the person's estranged or divorced partner;

(iii) a relative as defined in paragraph 35 of the person or member of the person's family who is either:

aged 60 or over

is a child of the resident aged under 18

is incapacitated.

11. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

There are two types of LPA:

Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.

Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

What happened – the assessment and DPA application

12. The late Mrs A used to live with her daughter Ms X and son Mr X at her own home. In 2017 she became increasingly frail and following a hospital discharge meeting in March, where Ms X was present, the decision was taken in her best interests that she should move to a nursing placement at a care home.
13. A financial assessment officer visited Ms X in June 2017. She completed a financial assessment taking into account Mrs A’s private pension, Disability Living Allowance, state pension and bank accounts as well as the value of her property which was deemed to be £250,000. She explained to Ms X that there would be a twelve-week period when the value of the property would be disregarded and for that period Mrs A would be liable to pay £181.93 towards the cost of the placement. Subsequently Mrs A would be liable for the full cost of the placement (excluding the contribution from the NHS for nursing care) which would be £998 a week.
14. Ms X told the officer her brother would be 60 in 2019. The visit note also records Ms X discussed the possibility of a deferred payment agreement (DPA) and the financial assessment officer left a copy of the application form for her to complete.
15. In September after Ms X had sent her application for a DPA, the Council wrote to her asking for more details about the property registration and the existence of a power of attorney for Mrs A. The Council officer asked for a meeting. Ms X replied that she could not find some of the documents required. She said she would have to apply for council housing for herself and her brother and was concerned about the loss of the security of the house for her sister, who was ill. She said the financial assessment officer had told her the amount the family would be liable to pay under a DPA would be about £50,000.
16. The case officer said the Council could not proceed without the removal of her late father’s name from the registration and proof of a power of attorney or deputyship, as well as proof of Ms X’s identity. He said the amount likely to be payable under a DPA between May 2017 (the date to which the DPA would be backdated) and October 2019 (her brother’ s 60th birthday) would be nearer £100,000 – 130 weeks multiplied by the full cost of £998.
17. Ms X replied to the case officer’s manager asking for a review as she did not trust what she was told. She said the Council could not expect her to pay over £100,000.
18. A manager reviewed the records and replied to Ms X. She said under a DPA there would be an assessed service user contribution (disregarding the value of the property) which Mrs A would remain liable to contribute, and a loan which would be secured against the property. She said the loan agreement had been approved on the condition that Ms X supplied proof of her power of attorney, and that her late father’s name had been removed from the documents at the Land Registry. She said while Mrs A would be liable for the debt, Ms X (as holding power of attorney) would be responsible for signing the agreement. She said the financial assessment officer suggested the figure of £50,00 as an approximate annual amount until Ms X’s brother was 60.
19. Ms X asked for a further review and the finance manager responded. He did not uphold her complaints about the way the DPA application had been processed but noted there were some errors in the use of titles for which he apologized. He enclosed information leaflets about the DPA process and a draft DPA. He reiterated the documents the Council needed to see before the DPA was finalized.
20. Ms X made a formal complaint to the Council in October. The Council did not uphold her complaint.
21. In January 2018 the finance officer emailed Ms X asking about progress on the application for power of attorney, and the removal of her late father’s name from the house details at the Land Registry. Ms X replied that the Council was hounding her family and she would provide the details when she could.
22. In March the care home where Mrs A was resident contacted the Council to say it had not been paid the interim assessed contribution due from Mrs A. The Council’s finance manager wrote to Ms X to explain there was a debt accruing. He explained again the items which were required from her to agree the DPA. He asked if she could pay the care home the amount for Mrs A’s assessed contribution. She replied that she had understood the interim contributions would be added to the deferred amount which would all be paid as soon as her mother died and the house was sold.
23. The finance manager wrote to Ms X again on 15 March to say he could not proceed with the DPA. He said to enable the loan to be agreed he needed a copy of her power of attorney which he had requested numerous times, as well as confirmation the property register had been updated at the Land Registry. He said he would advise the care home the Council would pay the fees and he would raise invoices for the backdated fees to May 2017.

The complaint

24. Ms X complained about the way her DPA application had been handled. She said the Council had failed to support her requests for help in submitting a housing application. She said the Council should only charge Mrs A the council rate for the care home as it was its decision to place Mrs A there. She also complained the Council was sending invoices to Mrs A at her home address.
25. The finance manager responded. He said the address to which invoices were sent was the address registered for Mrs A until someone had the legal power to alter it. He said there were mandatory criteria outside the Council’s control which prevented the completion of the DPA, such as proof of her power of attorney and the correct registration at the Land Registry. He said it was not possible to place someone on the housing list unless they submitted an application, and he explained how to do so. He said the Council had contracted the price for Mrs A’s placement following its usual policies. He apologised that the Council had referred to her sister’s illness and that she had not been sent a copy of Mrs A’s assessment from March 2018.
26. In 2019 the Council made an application to the Court of Protection on Mrs A’s behalf as she had no legal representative.
27. Ms X complained again to the Council in April 2019. She made the same complaints as she had made in 2018. She also complained that letters about Court action had been sent to her mother at the care home.
28. A manager replied to Ms X. He explained there was a legal obligation to inform Mrs A of the application to the Court of Protection. He explained the price for Mrs A’s placement was that contracted at the time and could not be retrospectively altered to take into account a fixed price agreement which had been reached subsequently with some homes. He advised again on application for council housing and on any property disregards which might now apply.
29. The Court of Protection appointed a deputy for Mrs A’s property in May 2019.
30. Ms X complained to the Ombudsman. She said the Council was charging the home’s full rate not a council rate. She said the Council had told them they would have to sell the house within 90 days of Mrs A’s death.
31. The Council says it cannot find any written evidence the family was given a projection of £50,000 costs for Mrs A’s placement. It cannot find any evidence Ms X was told the house would have to be sold within 90 days of Mrs A’s death. It says the DPA agreement mentions 90 days as a period of debt repayment but as Mrs A did not have a DPA, this was not relevant.
32. In terms of the cost of the placement, the Council says the home was sourced in the usual way through its brokerage team. Another home was offered but Ms X declined it after visiting. It also says it has agreed a council rate with some (but not all) homes since July 2018 for people who are entitled to public funding: it has provided details which show the rate paid by Mrs A is not the most expensive.
33. The Council says it is now communicating with Mrs A’s deputy about the requirements to complete a DPA, and a possible mandatory disregard of the property’s value (as described in para 10 above).
34. Mrs A died in May 2020.
35. Ms X says she asked the Council to discharge Mrs A to her home so she could look after her because she could not afford the care home fees. She says the Council did not give her sufficient information to make a decision about her mother’s care.

Analysis

36. The Council has explained to Ms X what was required in terms of completion of the DPA. There is no fault there.
37. The Council arranged a placement for Mrs A in 2017 with the agreement of her family. It agreed a rate at the time after offering other options which were declined. The decision to move Mrs A into a nursing placement was a best Interests decision which the Council took as no-one had power of attorney for Mrs A. There is no evidence of fault there.
38. The Council gave Ms X the necessary information and advice to submit a housing application. It was not the Council’s fault that Ms X did not do so.

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Final decision

39. There is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman