Summary: Mr X complains about the Council’s decision to pursue him for his mother’s debt. He says there are no funds left in his mother’s estate to pay the invoice. We find fault with the Council for not sending prompt reminders to Mr X about his mother’s debt. However, we do not consider the fault caused Mr X any injustice. We do not find fault with the Council for its other actions.

The complaint

1. Mr X complains about the Council’s decision to pursue him for his mother’s debt of just over £22,000. He says the Council first sent him an invoice in February 2018, but he thought the invoice was no longer due because the Council completed a further financial assessment and agreed a new payment plan. He says the Council did not mention the outstanding debt again until September 2019, about 18 months after the first invoice. Mr X says there are no funds available to pay the invoice and he is not responsible for his mother’s debts.

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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. 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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I spoke with Mr X and considered the information he provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent a draft decision to Mr X and the Council and considered their comments.

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What I found

Legislation and guidance

8. The Care Act 2014, the Care and Support Statutory Guidance, and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the charging rules. When a council decides to charge for care, it must follow these rules when deciding how much a person has to pay towards their care.
9. The guidance says where the person has capital above the upper capital limit of £23,250 the person will need to pay the costs of their care in full. Otherwise, the council will carry out a financial assessment to determine how much they can afford to contribute to the cost of their care.
10. The guidance also sets out the establishment of a universal deferred payment scheme. Deferred payment agreements are designed to prevent people from being forced to sell their home in their lifetime to pay for their care. By entering into a deferred payment agreement, a local authority agrees to defer the payment of charges due to it from the adult, for the costs of meeting needs in a care home or supported living accommodation.
11. The guidance notes that the payment for care and support is deferred and not “written off”. The costs of provision of care and support will have to be repaid by the individual at a later date.
12. Local authorities must offer deferred payment agreements to people who meet the criteria (below) and who are able to provide adequate security. Subject to the criteria, local authorities must offer deferred payment agreements to people who meet their own needs.
13. The criteria:
• A person is ordinarily resident in the local authority area
• The person has needs which are to be met by the provision of care in a care home.
• The person has less than (or equal to) £23,250 in assets excluding the value of their main or only home.
• The person’s home is not disregarded, for example it is not occupied by a spouse or dependent relative.

(paragraph 9.3-9.5)

14. In principle, a person should be able to defer the entirety of their care costs; subject to any contribution the local authority is allowed to require from the person’s income. The local authority will need to consider whether a person can provide adequate security for the deferred payment agreement (paragraph 9.36)
15. If the person is considering a top-up, the local authority should also consider whether the amount or size of the referral requested is sustainable given the equity available from their chosen form of security. (paragraph 9.37)
16. At a minimum, when local authorities are required to offer a deferred payment agreement, they must allow someone to defer their ‘core’ care costs. To ensure sustainability of the deferral, local authorities have discretion over the amount people are permitted to top up. Local authorities should consider any request for top-ups, but retain discretion over whether or not to agree to a given top up. Local authorities should accept any top up deemed to be reasonable given considerations of affordability, sustainability, and available equity. (paragraph 9.53)

What happened

17. In 2016, Mr X’s mother, Mrs P, was privately funding a residential care home placement as she had savings over the £23,250 limit. The cost of her placement was £725 a week. Mrs P also had a property, which she owned a share of.
18. In June 2016, Mr X asked the Council to consider a deferred payment agreement as Mrs P was in the process of selling her property to fund her residential care home placement. The evidence shows Mrs P had savings equal to the capital limit of £23,250 but her estimated capital from her share of her property put her over the limit.
19. In September 2016, the Council completed a care assessment for Mrs P. The assessment set out Mrs P level of need and the amount the Council would pay towards her care costs. The cost the Council agreed to pay was just over £473 (including client contributions) a week.
20. In November 2016, the Council considered the sustainability of the cost of Mrs P’s placement. The Council noted Mrs P’s available equity, including the approximate capital from the sale of her property, would run out in less than 18 months if it allowed Mrs P to pay for her own top up fees to meet the placement cost of £725 a week. The Council said this was not sustainable and so would not agree to the deferred payment agreement unless there was a third party to meet the top up.
21. The records showed the Council contacted Mr X to explain about the lack of sustainability in Mrs P paying for her own top up fees. The Council asked Mr X to sign a third party top up agreement to pay the top up fees of just over £251. This would enable Mrs P to stay in her preferred care home.
22. In January 2017, Mr X and his two brothers signed the third party top up agreement. The agreement set out that Mr X and his brothers agreed to pay the Council just under £84 a week. The agreement was effective from August 2016.
23. In January 2018, Mrs P sold her property. She received capital from the sale of the property of just over £30,000. In February 2018, the Council wrote to Mr X to request payment of Mrs P’s deferred care costs. The Council set out the total amount due up to March 2018 was just over £22,000. The letter also noted the Council considered Mrs P to have capital more than the capital limit of £23,250 and so she was responsible for the full cost of her care from March 2018 onwards.
24. In March 2018, Mr X disputed that Mrs P had capital over limit and asked the Council to complete another financial assessment.
25. In April 2018, the Council wrote to Mr X to confirm that following its financial assessment, Mrs P had to pay for the full cost of her care until the end of April 2018. At this point, Mrs P would be eligible for assistance with funding from the Council
26. The Council also explained to Mr X he and his brothers had agreed to pay the required third party top up fees to enable his mother to remain in her preferred care home. The Council said these top up payments should have been paid by them and not paid from Mrs P’s capital.
27. The Council said the debt was chased by manual reminders but there is no evidence of these reminders.
28. Mrs P died at the end of February 2019. In March 2019, the Council wrote to Mr X to ask him to pay for the outstanding third party top up fees owed to it. The Council did not ask Mr X to pay the deferred costs of just over £22,000.
29. The Council sent a reminder for Mr X to pay the outstanding debt of just over £22,00 in September 2019. The Council sent further reminders in March and June 2020.
30. Mr X told us his mother wanted to repay him and his brothers for what her care was costing them. He said his mother wanted to cover the cost of her care. Mr X his mother’s estate had no money left to pay the Council back.

Analysis

31. The statutory guidance is clear that where a person has capital above the upper capital limit of £23,250, the person will need to pay for the cost of their care in full.
32. When Mr X approached the Council in June 2016, the evidence showed Mrs P had savings equal to the capital limit. However, as Mrs P owned a share in her property, this brought her over the capital limit of £23,250. This meant she was still responsible for paying for the full cost of her care.
33. As Mrs P’s capital was tied up in her property, the Council offered Mrs P a deferred payment agreement. This was appropriate and in line with guidance. This meant the Council would pay for Mrs P’s care costs on her behalf and then recoup the money once she sold her property. The guidance is clear that payment is deferred, not written off, and that the individual will need to repay the costs later.
34. The evidence shows Mrs P’s care home placement cost £725 a week. Following the Council’s assessment of Mrs P’s needs, it assessed it would pay care costs of just over £473 a week. Therefore, for Mrs P to remain living in her preferred care home, she would need to pay a top up of around £252 to meet the care home’s fees.
35. The guidance sets out that if the individuals wishes to pay their own top up fee, the Council must consider whether the top up is sustainable given the equity available from their chosen form of security. In this case, Mrs P’s property.
36. The evidence shows the Council considered this but did not agree the top up was sustainable as Mrs P would only be able to fund her care placement for less than two years. This shows the Council properly considered the sustainability of Mrs P’s request to pay for her own top up in line with the statutory guidance. Therefore, the Council was entitled to exercise its discretion not to agree to Mrs P funding her own top up.
37. Therefore, there is no fault with the Council asking Mr X to pay back the money it paid to Mrs P’s care home between October 2016 and March 2018. This is because the evidence shows Mrs P had capital over the limit of £23,250 during this period. Therefore, she was responsible for the full cost of her care. The Council paid for Mrs P’s care costs while her property was in the process of being sold, under a deferred payment agreement. This meant the Council expected Mrs P to pay it back once her property was sold.
38. Mr X said there were no funds left in Mrs P’s estate to pay the Council. Mr X also told us his mother wanted to repay him and his brothers for the cost of the top up fees. This suggests Mr X and his brothers took money from Mrs P’s capital to pay themselves back. This effectively means Mrs P paid for her own top up fees, which she should not have. This in turn meant her total capital depleted quicker than assessed.
39. Therefore, while I accept Mr X’s position that there are no funds left in Mrs P’s estate to now pay the Council, I am of the view Mrs P should have had enough capital to repay the Council when her property was sold in January 2018.
40. Mr X said the Council did not send him an invoice to pay the outstanding £22,000 until September 2019. He said this was seven months after Mrs P’s death and 14 months after the first invoice. Mr X said because of the delay, he thought the debt had been written off by the Council.
41. The evidence shows the Council did not send a reminder to Mr X to pay the outstanding debt until September 2019. The Council completed a financial assessment in April 2018 which confirmed Mrs P was responsible for the full cost of her care up to the end of April 2018. It would be reasonable to expect the Council to have sent Mr X a reminder to pay the outstanding debt after this financial assessment.
42. Therefore, I find fault with the Council for the delay in sending Mr X a reminder to pay the outstanding debt. However, I do not consider the fault caused Mr X any injustice. This is because the Council sent him an invoice in February 2018 and the Council confirmed in April 2018 that Mrs P was responsible for the full cost of her care up to the end of April 2018. Further, there is no evidence the Council told Mr X it had written off Mrs P’s debt. Therefore, Mr X had the relevant information available to be aware of the invoice and the fact Mrs P had to pay it.

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Final decision

43. I find fault with the Council for not sending prompt reminders to Mr X about his mother’s debt. However, this did not cause any injustice. I do not find fault with the Council’s other actions. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman