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East Sussex County Council (20 002 988)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 01 Jun 2021

The Ombudsman's final decision:

Summary: Mr C complained about the way the Council advised and supported him with regards to paying for his mother’s care home fees. The Council has agreed to repay part of the fees and pay Mr C £250 for the distress he experienced.

The complaint

  1. The complainant, whom I shall call Mr C, complained to us on behalf of his (late) mother, whom I shal call Mrs X. Mr C complained:
    • The Council provided inaccurate and incorrect information about the way his mother’s residential care would be paid.
    • The Council failed to offer a care home whose charges would have fallen within the personal budget set by the Council.
    • There was a delay by the Council in setting up a Deferred Payments Agreement

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

Relevant Legislation and Guidance

Choice and Top ups

  1. A personal budget gives a person clear information about the costs of their care and support, and the amount the council will make available. It helps people to make better informed decisions as to how needs will be met. The council should inform the person of their personal budget as early as possible. The personal budget must always be an amount enough to meet the person’s care and support needs.
  2. The Statutory Care Act Guidance (Annex A20) says that: In some cases, a person may actively choose a care home that is more expensive than the amount a council has identified for the provision of the accommodation in the personal budget. Where they have chosen a setting that costs more than this, an arrangement will need to be made as to how the difference will be met. This is known as an additional cost or ‘top-up’ payment and is the difference between the amount specified in the personal budget and the actual cost. In such cases, the council must arrange for them to be placed there, provided a third party, or in certain circumstances the person in need of care and support, is willing and able to meet the additional cost. As such the council should ensure that:
    • The person understands the full implications of the more expensive choice (the requirement for a top up)
    • The person paying the ‘top-up’ is willing and able to meet the additional cost for the likely duration of the arrangement. It therefore must ensure that the person paying the ‘top-up’ enters into a written agreement with the local authority, agreeing to meet that cost.

Deferred payment agreement (DPA)

  1. A deferred payment agreement (DPA) is meant to ensure that a client is not forced to sell their home during their lifetime, if they need to pay for residential care. By entering into a DPA, the client delays paying for their care until a later date.
  2. A DPA can be used either to defer costs until after the person’s death, or as a ‘bridging loan’ to give them time and flexibility to sell their home when they choose to do so. It means the client borrows money towards their care home fees.
  3. The Statutory Care Act Guidance says that:
    • A council needs to ensure that adequate security is in place for the amount being deferred, so that they can be confident that the amount deferred will be repaid in the future. 
    • A council may refuse a deferred payment agreement despite someone meeting the qualifying criteria, where:
        1. It is unable to secure a first charge on the person’s property.
        2. Where someone is seeking a top up.

What happened

  1. Mrs X lived in a property that she owned, when she had a fall and went into hospital. The Council carried out a needs assessment on 2 July and 21 August 2019, which concluded Mrs X would need a placement in a residential care home. Following each assessment, the Council provided Mr C with a support plan, each of which mentioned a personal budget of £485.66. This was the amount that the Council determined would be sufficient to find a suitable care home for Mrs X in East Sussex. The assessments said, amongst others, that the Council would look for a placement close to where the family lived, and Mrs X did not have savings above £23,250.
  2. Mr C told the social worker in early July 2019 that his mother’s property would be worth around £400,000 and the family would put it on the market. As such, Mrs X would be self-funding and therefore eligible for a 12-week property disregard. The Council subsequently requested a financial assessment on 3 July and started to look for care homes.
  3. The Council told me that the first Resource Officer who managed Mrs X’s discharge from the Nursing Home, provided correct information about how her residential care would be paid for. At the start of July 2019, the hospital Social Work Team provided Mr C with printed information and he signed to confirm he received information leaflets, including “A Guide to Adult Social Care”, which explained a person has to pay all the costs if they have more than £23,250 (including their property).
  4. The Council says its Financial Assessment Team also provided information on 8 July 2019, with the letter confirming the financial assessment visit for Mrs X on 16 July 2019. It enclosed the following leaflets:
    • Going into Residential Care:
        1. Talks about the possibility of a top up during the 12-week property disregard.
        2. Explains that if a care home costs more than the amount the Council agreed to pay, which would normally be its usual rate, a family member could pay a ‘top-up’. Our loans (DPA) can usually only be made to the level of our usual rates.
    • Financial Assessments if you have been self-funding your care.
  5. On 12 July 2019, the Council received information about seven available homes that could meet Mrs X’s needs. One of these was the home Mrs X moved into, which said the rate was £895 a week, and the West Sussex council rate was £591.75. Two of the homes did not need a top up during the first 12 weeks (but would increase their fees after that). The Council forwarded this information and options to Mr C, and he acknowledged receipt of the information on 19 July 2019.
  6. Mr C asked the Council on 17 July 2019, what would happen with funding after the 12-week period if the property has not been sold yet. The Council advised him that:
    • He could ask the nursing home if they could hold the fees, as the family would pay off any debts in full following the sale of the property.
    • Alternatively, he could discuss a deferred payment scheme (DPA). Mr C said that, following the sale of his mother’s property, Mrs X would be able to self-fund the cost of a nursing home for around 6 years.
  7. Mr C told the Council on 22 July 2019 which home the family had chosen. The Council contacted the care home on 30 July. The care home said the room available would cost £995, not £895, which meant a top up of £403.25.
  8. Mr C told the Resource Officer on 31 July that he was concerned about what would happen after the twelve weeks property disregard. The record states he said that his: “Mum has around 10-12 weeks worth of money to pay the fees, and if the property doesn't sell within that time, he doesn't know how the care home fees will be paid“. The resource officer said she would speak with the relevant people to answer Mr C’s queries.
  9. The Finance Team advised the Resource Officer later that same day, that a deferred payment scheme could take a while to set up and it cannot be used to pay for the third party top up as well. The finance team also advised they would have to check if they could even offer a DPA if a client is placed in a home outside the council’s area.
  10. The resource officer emailed Mr C on 5 August 2019, to say she contacted the Service Placement Team' to find more care home options without a 3rd party top up fee.
  11. The Council sent Mr C an email on 7 August 2019 with incorrect advice. It said that if the property does not sell before Mrs X’s money runs out: The council have a duty of care for Mrs X and would be able to support her. The funding would not come down to you, and you would not be expected to pay any fees.
  12. Mr C says the Council told him that day that, if the money would run out, the Council would be able to support his mother and the family would not have to pay anything then. His mother moved into the care home the family had chosen the next day. At the time, she had about £16,000 in savings.
  13. The Council acknowledged in its complaint response to Mr C in February 2020, that this information had been incorrect, confusing and conflicting. It said it would take actions to avoid a reoccurrence, including a staff training session with finance colleagues to ensure they have a clear understanding of these issues. It also said it could offer a Deferred Payments Agreement of £995 as a bridging loan until the property was sold. It also offered to pay £250 for any distress it caused.
  14. Mr C says the family paid the entire weekly care home fee, including the top up, from Mrs X’s savings, until her savings ran out in January 2020.
  15. The Council says:
    • The email of 7 August 2019 was quickly corrected and superseded by information from the Financial Assessment Team on 8 August 2019, confirming the outcome of Mrs X’s financial assessment. It explained the weekly amount she would have to contribute during the first twelve weeks, and that she would be self-funding from 6 September 2019. The letter also said that Mr C should consider a DPA and provided information about this and an application form. The letter also provided a telephone number to call if Mr C had any questions. In addition, an information leaflet was provided, “Going into Residential Care”, which detailed the DPA. It provided details for when a property disregard would apply, when it would start from, that a person would need to contribute towards their care costs during that time and may also need to pay a top up of care charges as well if the provider did not accept the Council’s standard rate.
    • The Council received the completed DPA application on 27 September 2019. There was subsequently a six-week period of delay between 4 October (when the equity release company confirmed to proceed) until 15 November 2019.
    • At the time Mrs X moved to the care home on 8 August 2019, an appropriate third party top up was not in place, it had been calculated incorrectly and the necessary paperwork had not been completed. The Council accepts this was wrong and whilst conversations must have occurred for the third party top up to have been agreed and paid by the family these conversations were not recorded.
  16. The Council told Mr C on 29 November 2019 that it would not be able to put a Deferred Payment in place, because the care home fees were more than Mrs X’s personal budget. As such, Mrs X would have to continue to pay the full cost of her care fees.
  17. The Council told me that its usual approach and policy is that it will not agree a DPA for a rate above the Council’s usual rate (see paragraph 9 above).
  18. Mr C says:
    • He sent the Deferred Payment Application in September 2019 and believed the agreement would pay for the full costs of the placement (including the top up) until the property was sold.
    • It was only then explained to them that the DPA / Council would only cover the amount of Mrs X’s personal budget. As such, the Council said it could not enter into a DPA with the family and Mrs X would have to continue to pay the full cost. This came as a total shock to the family.
    • After he made a complaint about this, the Council agreed in February 2020 that the DPA would cover the whole amount. Following this, he believed the DPA issue had now been resolved. However, the Council had still not put an agreement in place with the home at the time Mrs X passed away in April 2019.
  19. On 9 March 2020, the Council asked the care home to confirm if they agreed to a rate of £995 per week, to enable the Council to pay the fees under a DPA. The Council also asked Mr C for additional information on 27 April 2020 and chased this up through two emails in early May. It asked, amongst others, for:
    • A copy of the current building insurance, as the previous one expired on 1 February 2020.
    • Confirmation to use a previous valuation of the property of £450,000.
  20. The Council says it is sorry there were some delays in setting up the DPA after February 2020.
  21. The Council told me that:
    • It accepts there have been some errors with the information it provided and delays setting up a DPA, for which it is sorry.
    • As a remedy, the Council proposes to fund the twelve-week property disregard period of Mrs X’s care at the self-funding rate of £995 per week, less the client contribution, and reimburse her estate for this. This offer is calculated from the third party top up figure of £403.25 x 12, totalling £4,839.
    • The Council has already paid Mr and Mrs C £250 in recognition of the time and trouble the family have experienced. Our remedy proposal is to be balanced against the fact that Mrs X received the care she needed and would ordinarily be paying for this herself.

Analysis

  1. Before Mrs X moved into the care home the family had chosen, the Council was aware that:
    • Mr C was worried that he would not be able to sell his mother’s property before the end of the twelve-week property disregard. He asked the Council therefore what would happen, if this would be the case. He had been told there was a possibility of applying for a DPA.
    • The home was more expensive than the Personal Budget the Council had allocated, which meant there would be a need for a top.
  2. However, the Council failed to make it subsequently sufficiently clear to Mr C that a DPA would only cover the amount of Mrs X’s Personal Budget, and that the difference between that, and the total cost of the home, would have to be paid by the family until Mrs X’s home would be sold and the DPA would end. This is fault. It is clear that Mr C believed the DPA would cover the full cost of the placement from the moment it would start.
  3. Ultimately, it is the responsibility of the Council to ensure a client, and their family, fully understand and agree to any third-party top up arrangement that is needed. General information about DPAs and the possibility of a top up, was included in a leaflet the Council sent to Mr C on 8 August 2019. However, this was important information which the Council should have explained to Mr C in person. The Council should have assured itself that, before Mrs X went into the home, that the family knew there would be a top up (under a DPA), what the full implications of having to pay a top up would be, and that the family was willing to pay the ‘top-up’ for the likely duration of the arrangement.
  4. The Council also failed to sign a top up agreement with the family, before Mrs X went into the care home. This is fault.
  5. Furthermore, the Council provided incorrect advice in an email in August 2019 that suggested that, if the property had not been sold yet after twelve weeks and Mrs X’s money ran out, the Council would pay all the care home fees. This is fault.
  6. The Council received the completed DPA application on 27 September 2019. There was subsequently a six-week period of delay between 4 October (when the equity release company confirmed to proceed) until 15 November 2019.
  7. The Council acknowledged in its complaint response to Mr C in February 2020, that it had provided incorrect, confusing and conflicting information. It also acknowledged an appropriate third party top up was not in place, and the necessary paperwork had not been completed. It said it would take actions to avoid reoccurrence, including a staff training session with finance colleagues to ensure they have a clear understanding of these issues. It also said it could offer a Deferred Payments Agreement of £995 as a bridging loan until the property is sold. It also offered to pay £250 for any distress it caused.

Agreed action

  1. The remedy provided by the Council in February 2020, along with the remedy now proposed in paragraph 30 above, is sufficient to remedy any injustice in this case. I recommend that the Council reimburses the estate, within four weeks of my decision.
  2. The Council has told me it has accepted my recommendation.

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Final decision

  1. For reasons explained above, I have upheld Mr C’s complaint.
  2. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman

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