Summary: Mr B complains that the Council provided an inaccurate redemption statement for his mother’s Deferred Payment Agreement for care home charges and delayed in issuing an invoice for an overpayment of Direct Payments for home care. The Ombudsman considers that some of the information provided was unclear and there was delay in issuing the Direct Payment invoice. The Council’s offer to write off the debt apart from the outstanding care home fees of £2,804.12 is a suitable remedy for any injustice caused to the family.

The complaint

1. Mr B complains that:
• The Council did not provide complete or accurate information to settle his mother’s Deferred Payment Agreement when her home was sold.
• It also delayed in requesting the repayment of Direct Payments it had previously made to Mrs B for home care.
2. He disputes the amount the Council says is owed and considers that the Council owes them money. He says this has caused the family stress and anxiety.

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The Ombudsman’s role and powers

3. 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)
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 have considered Mr B’s written complaint and supporting correspondence and discussed his complaint with him. I have made enquiries of the Council and considered its response and supporting papers. I have had regard to relevant legislation and guidance. I have also sent Mr B and the Council a draft decision and invited their comments.

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What I found

Legal and administrative background

Charging for permanent residential care

6. 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 a 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 care.
7. The rules state that people who have capital over the upper capital limit of £23,250 are expected to pay the full cost of their residential care home fees. However, once their capital has reduced to less than the upper limit, they only have to pay an assessed contribution towards their fees.
8. Councils 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.
9. A person with sufficient means and capacity may arrange and pay for their own residential care placement, without involving the Council.

Property disregards

10. In some circumstances, the value of the person’s main or only home must be disregarded. Where a resident has a property, this must be disregarded from the financial assessment during the first 12 weeks of care.

Deferred Payments

11. The Deferred Payment Scheme 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 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.

Charging for non-residential care services

12. Non-residential care is care other than in a care home, usually in people’s own homes. Non-residential care services include domestic help and personal care at home, day care, and other support from the council such as transport, equipment, and housing adaptations not provided through Disabled Facilities Grants.
13. Councils have discretion to choose whether or not to charge for non-residential services. Where a council decides to charge it must also do so in line with the Regulations and Guidance referred to in paragraph 6 above.

Direct payments

14. Direct payments are a means of paying some, or all, of the personal budget to the person to arrange and pay for their own care. These are intended to provide independence, choice and control over the way needs are met and outcomes achieved. Councils will usually reclaim unspent direct payments.

What happened

15. There has been extensive correspondence on these matters between Mr B and the Council. I have not sought to repeat all the detail of that correspondence but have summarised the main events and gone on to consider whether there has been fault which has caused injustice.
16. Mr B had joint Power of Attorney for his mother, Mrs B. Mrs B previously owned and lived in her own home. While living at home, Mrs B received a home care package paid for with Direct Payments from the Council.
17. Unfortunately, due to ill health, Mrs B was admitted to hospital in July 2017. The Council continued to make Direct Payments to her account for her non-residential care package in the meantime.
18. On 9 November 2017, Mrs B was placed in a care home while her needs were assessed. Following the care needs assessment, Mrs B was deemed as requiring permanent residential care from 6 December 2017. From this point she was eligible for a 12-week property disregard. The family were made aware of this, and the value of Mrs B’s home was excluded from the calculation of her financial contribution to her care home fees.
19. Mrs B entered into a Deferred Payment Agreement (DPA) with the Council to pay her care home fees. The DPA was secured with a charge on Mrs B’s property.
20. The family subsequently decided to sell Mrs B’s home and emailed the Council on 11 December 2019 to check the amount required to redeem the DPA and remove the charge from the property. The Council provided a breakdown of the outstanding balance the next day.
21. As the sale had not yet completed, Mr B requested a further breakdown of charges due on 27 January 2020. The Council wrote to Mr B the same day, saying that the total debt due was £38,906.85 up to 31 January 2020. Mr B was asked to forward details of the completion date and net proceeds for the Council to confirm the exact balance due and conclude the DPA. The Council would then be able to remove the charge from the property.
22. Contracts were exchanged on Mrs B’s house on 28 January 2020, the requested sum transferred to the Council and the sale completed on 31 January 2020.
23. On 13 February 2020, the Council sent an invoice for £920.00 for care home payments for the period 5 January 2020 to 1 February 2020.
24. On 19 February 2020, the Council sent a further invoice showing the total sum due of £38,478.11 to conclude the DPA.
25. On 20 February 2020, the Council sent an invoice for £1,392.86 for payments the Council had made from 2 to 17 February after the ending of the DPA.
26. Mr B raised a number of concerns about the invoices. He considered that the family should not be required to pay any further charges beyond what was set out in the Council’s letter of 27 January 2020 as they had requested a full statement of charges due. He questioned the accuracy of the figure of £38,478.11 in the revised DPA statement. He considered that the further invoice for the sum of £1,392.86 should have been included in the total balance due.
27. The Council wrote to Mr B and explained the charges. In the meantime, it sent Mr B an invoice for £2,891.97 relating to an overpayment of a Direct Payments for Mrs B’s homecare between the dates of 10 July 2017 and 14 January 2018.
28. Mr B was dissatisfied with the Council’s explanation about the DPA invoices. He also asked why the Council had not followed up the overpayment of Direct Payments for more than two years and complained through the Council’s procedures. He did not consider that the family should have to pay additional charges.
29. The Council responded to his complaint and provided a full statement showing how the DPA charges had been calculated. It did not consider that there had been fault in the way the invoices for the DPA had been issued, aside from an invoice number wrongly being duplicated. It apologised for this. It also explained why some invoices had been issued after the DPA had been concluded. It noted that, although the fees and interest charges were shown in the DPA redemption statement, it had not raised an invoice for these additional charges. It agreed to waive these additional DPA charges of £754.60.
30. The Council apologised for the delay in issuing the invoice for the overpayment of Direct Payments and the lack of contact about this. It explained that (in addition to the Direct Payment overpayment) there was an unreconciled Direct Payment balance which it agreed not to add to the existing balance due. The invoiced overpayment was for £1,531.17.
31. Excluding the payments written off, the Council considered that there was a total of £5,696.09 due (comprising outstanding care home fees of £2,804.12 and a Direct Payment overpayment of £2,891.97).
32. The Council issued a further invoice for £5,696.09, though it also issued a separate invoice for £5,204.83, before reverting to the previous figure.
33. Mr B then complained to the Ombudsman. Mrs B has sadly passed away since the events in this complaint.

My assessment

Settlement of Deferred Payment Agreement

34. Mr B considers that the Council should be bound by the redemption amount stated in its letter of 27 January 2020.
35. The Council’s letter says that the redemption figure is subject to change and that it would need the Completion of Sale statement to determine the exact sum due. However, it also suggests that the redemption figure would be valid if payment was made on the date stated.
36. In my view, the Council’s letter setting out the redemption amount could have been clearer. It did not explain that the DPA redemption amount might not include all the interim contributions. I also note that interest was excluded from the invoiced amount, and the Council later provided differing figures for outstanding debt.
37. I appreciate that this has caused some confusion over the sums due. However, I do not consider that this has caused Mr B such injustice as to warrant writing off all the additional charges which Mr B was not expecting. Moreover, the Council has in any event agreed to waive the interest and charges of £754.60 on the DPA. I cannot see that Mr B has suffered an injustice which would warrant any further remedy beyond this in respect of the DPA.

Charges due

38. Mr B has queried the balance due in respect of his mother’s care home fees and Direct Payments.
39. I have reviewed the payments invoiced and paid in respect of interim, redemption and post-redemption charges. I see nothing to suggest that the balance of £5,696.09 in respect of Mrs B’s care home charges and overpayment of Direct Payments is incorrect.

Delay removing charge on property.

40. Mr B says his mother’s house sale was exchanged and completed while there was still a charge against the property. He feels that the Council was at fault in this. He says the Council initially refused to release the charge but then told his solicitor it would seek to recover any outstanding sums from him
41. I see no fault here. The Council’s actions did not delay the exchange or completion of the sale, and it was entitled to seek to recover all the sums due before removing the charge. In any event, the Council subsequently agreed to remove the charge, even though it considered there were sums still outstanding.

Delay in invoicing for Direct Payments

42. Mr B has complained that the Council took too long provide an invoice for the overpayment of Direct Payments for his mother’s home care.
43. The Council has explained that there was a delay in the Social Care worker closing the home care service on the case management system. As a result, Direct Payments continued to be issued for several months.
44. The Council says the process back in 2017/18 was to wait for the final returns from the client before issuing invoices to reclaim Direct Payments. It says it requested but did not receive returns from Mr B (though Mr B disputes this), so no further action was taken to reclaim the overpaid funds. Following an audit in 2020/21, the Council raised invoices for overpayments where applicable.
45. The Council has now changed its process to raise overpayment invoices as soon as the team is notified of a closure. However, as Direct Payments are made in advance, there is always a risk of overpayment. The Council has also recently implemented a Pre-Paid Cards system for Direct Payment customers, which will provide much more control and allow the Council to monitor spending in real time and reclaim any funds immediately.

The Council has already agreed not to seek recovery of the unreconciled Direct Payments amounting to £1,531.17. In addition, in recognition of the delay in issuing the invoice for the Deferred Payment overpayment, it has now agreed not to recover the Direct Payment overpayment of £2,891.97. So, instead of seeking recovery of £5,696.09 due, the Council is now only seeking to recover the outstanding care home fees of £2,804.12. I cannot see that Mr B has suffered an injustice which would warrant any further remedy beyond this.

Agreed action

46. The Council has agreed not to recover the Direct Payment overpayment of £2,891.97 but only the outstanding care home fees of £2,804.12. It should issue updated invoices to confirm this within one month.
47. It has also agreed within one month to review the wording on its DPA redemption letters to make it clear that there may be separate invoices for interim charges, interest or fees which may not be included in the stated redemption figure.

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Final decision

48. I have closed my investigation into Mr B’s complaint as I consider the agreed actions above are a suitable remedy for the injustice to the family.

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Investigator's decision on behalf of the Ombudsman