Summary: Mrs X complained on behalf of her mother, Mrs Y, about the Council’s decision to refuse to accept a deferred payment agreement for the cost of Mrs Y’s care, using her home as security. The Ombudsman did not find fault in the Council’s decision-making.

The complaint

1. Mrs X complained on behalf of her mother, Mrs Y, about the Council’s decision to refuse to accept a deferred payment agreement for the cost of Mrs Y’s care, using her home as security.
2. Mrs X is concerned Mrs Y will not be able to continue to meet the cost of her care. She would like the Council to reconsider its decision or give her an alternate solution.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care and Support Statutory Guidance.
• The Council’s Care and Support Charging and Financial Assessment Framework.
6. Mrs X 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

Guidance

Charging

7. Where a local authority arranges care and support to meet a person’s needs, it may charge a fee.
8. The legal framework for charging is set out in Sections 14 and 17 of the Care Act 2014.
9. Where a local authority has decided to charge it must carry out a financial assessment of what the person can afford to pay.
10. The overarching principle is that people should only be required to pay what they can afford.

Deferred payment agreements

11. Setting up the universal deferred payment scheme means that people should not be forced to sell their home in their lifetime to pay for their care. (Sections 34-36 of the Care Act 2014 and the Care and Support (Deferred Payment) Regulations 2014 (as amended by the Care and Support (Deferred Payment)(Amendment) Regulations 2017)).
12. By entering 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. Or
• Defer the repayment of a loan to the adult in instalments, to cover the costs of care and support in a care home or supported living accommodation
13. Local authorities need to ensure that enough security is in place for the amount being deferred, so they can be confident the amount deferred will be repaid in the future.
14. The regulations provide that someone must be offered a deferred payment agreement if they meet all the following criteria:
1. person is ordinarily resident in the local authority area or present in the area but of no settled residence.
2. person has needs which are to be met by the provision of care in a care home.
3. person has less than (or equal to) £23,250 in assets excluding the value of their main or only home.
4. person’s home is not disregarded.
15. Local authorities are, at their discretion, allowed to be more generous than these criteria and offer deferred payment agreements to people who do not meet criteria b, c, or d.
16. There are certain circumstances in which a local authority may refuse a request for a deferred payment agreement, even if a person meets the qualifying criteria. This permission to refuse is intended to provide local authorities with a reasonable safeguard against default or non-repayment of debt.
17. In any of the above circumstances, a local authority should consider whether to exercise its discretion to offer a deferred payment anyway.
18. A local authority must have enough security in place when entering a deferred payment agreement. Local authorities have full discretion in individual cases to refuse a deferred payment agreement if it is not satisfied that enough security is in place.
19. The Council’s financial assessment framework requires the equity available in a person’s home to be enough to pay for care and support for three years. If the available equity is less, it will be at the Council’s discretion whether to enter a deferred payment agreement.

What happened

20. I have detailed below some of the key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
21. Mrs Y suffers from dementia. Before January 2021, she was receiving a package of care at home.
22. However, in January 2021, after a spell in hospital, Mrs Y was moved into a care home because her care needs could no longer be met by having care at home.
23. Mrs Y liked the care home and Mrs X told the Council she wanted to stay.
24. The Council completed a financial assessment for Mrs Y in February 2021. Based on how much capital Mrs Y had, and the value of her home, the Council assessed Mrs Y would have to pay the full costs of her care.
25. The Council contacted the care home to find out their fees for Mrs Y to stay there. The care home said its fees would be between £1,100 and £1,200 a week.
26. Mrs X thought the fees would quickly leave Mrs Y with no savings, meaning she could not afford to pay unless she sold her home.
27. Mrs X asked the Council to defer the fees using the value of Mrs Y’s home as security.
28. The Council wrote to Mrs X on 8 April. It refused her deferred payment request because there was not enough equity in Mrs Y’s home to pay the care home’s fees for three years.
29. Mrs X complained to the Council about its decision on 21 April.
30. The Council replied to Mrs X’s complaint on 27 April. It said:
• According to Mrs X, Mrs Y’s home is worth £99,950. According to the guidance, the Council must take off 10% for sale costs and discount the lower capital threshold limit of £14,250. The maximum equity in Mrs Y’s home is therefore £75,750.
• The cost of the care home’s fees for three years, considering the income-based assessment charge, is £101,248.68.
• The Council’s policy states there must be enough security to pay the care fees for three years. The equity in Mrs Y’s home does not provide enough security to pay those fees.
• The guidance gives the Council full discretion in individual cases to refuse a deferred payment agreement if it is not satisfied that enough security is in place.

Response to enquiries

31. The Council said it told Mrs Y to speak to the care home about funding while waiting for Mrs X’s home to sell.
32. The Council told me it was not aware Mrs Y’s savings had fallen below the lower capital limit. If her house sale is progressing, the Council will consider entering an interim funding agreement while the sale completes.
33. The Council said considered offering to defer a lower amount of Mrs Y’s care costs, but Mrs X could not fund any part of the fees. The Council therefore did not consider this was suitable.

Analysis

34. On the evidence seen, the Council’s decision was in line with the guidance and its policy.
35. The gap between the equity needed in this case and the equity available in Mrs Y’s home is significant.
36. In those circumstances, both the guidance and the Council’s policy allow discretion to refuse a deferred payment agreement.
37. It is not the role of the Ombudsman to assume the Council’s decision-making role or to re-make its decision. We must consider whether the Council followed a proper decision-making process.
38. The Council considered the relevant guidance and policy. It also considered alternatives when it decided not to agree a deferred payment. I have not seen evidence of fault in the Council’s decision-making.
39. Mrs X worries what will happen if she cannot sell Mrs Y’s home before her capital runs out, leaving her unable to meet the care home’s fees.
40. Mrs Y is now settled, and the Council agreed the care home is meeting Mrs Y’s needs. In those circumstances, the Council would have to consider whether it would be harmful to Mrs Y’s health to move her to another care home with lower fees.

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Final decision

41. I have completed my investigation. The Ombudsman did not find fault in the Council’s decision-making.

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Investigator's decision on behalf of the Ombudsman