Summary: Ms B complained on behalf of her mother, Mrs X, that the Council failed to send deferred payment agreement forms after she moved into residential care and failed to advise her that she could claim Attendance Allowance. We found the Council delayed in sending the deferred payment agreement form to Mrs X and failed to arrange an appointment to discuss the scheme in more detail after her placement became permanent. However, it has provided a suitable remedy for the injustice caused.

The complaint

1. Ms B complains on behalf of her mother, Mrs X, that the Council failed to send deferred payment agreement forms after she moved into residential care and failed to advise her that she could claim Attendance Allowance causing the family uncertainty.

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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. If we are satisfied with an organisation’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

4. I have considered information provided by Ms B and by the Council.
5. Ms B 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

Legal and administrative background

Charging for permanent residential care

6. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
7. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
8. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person is entitled to access council support to meet their eligible needs. People who have over the upper capital limit are expected to pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

Deferred payment agreement

9. People who own their own home can use the value of their property to pay for their residential care fees through a deferred payment agreement (DPA) with their local council. A DPA is a long-term loan secured against the person’s home. Under the agreement the council will pay the care home costs and the loan will be repaid when the person chooses to sell their home or after their death.

Key facts

10. Ms B’s mother, Mrs X, moved into a care home in October 2019 after being discharged from hospital. Shortly before she was discharged, one of the Council’s hospital social workers met with Mrs X and her family to discuss the Council’s charging policies, the assessment process and setting up a DPA. The Council says the social worker sent a copy of the deferred payments factsheet to Mrs X.
11. On 6 November 2019 the Council’s purchasing team sent Mrs X a short-term care letter, residential care factsheets and a financial assessment form.
12. In February 2020 Mrs X’s placement was made permanent. The Council says that, on 3 February 2020, an officer from the social care benefits team noted that a visit was to be arranged to discuss the deferred payment scheme in more detail. But the visit was not completed, and in March 2020 the country went into national lockdown because of COVID-19.
13. Ms B completed the financial assessment form which was signed by Mrs X. She then received a letter from the care home explaining Mrs X’s contribution towards the cost of her care. Ms B says the care home told her the Council would contact her to discuss the procedure and provide information about the financial implications. It also said they should have received a DPA form because Mrs X had a property to sell.
14. In May 2020 the social worker completed a review with Mrs X by telephone because of COVID-19 restrictions.
15. On 21 May 2020 the Council wrote to Mrs X explaining that she was required to pay the full cost of her care from February 2020. It explained this was an interim contribution until a completed DPA form was returned when the Council would confirm her actual contribution. It also explained that, if the form was not returned, or the Council did not hear from the family, Mrs X would be liable to pay the maximum charge from February 2020.
16. Ms B says that, in June 2020, she received a DPA form from the care home which she completed and returned to the Council. She says she received no acknowledgement.
17. Mrs X’s property was sold in January 2021. Ms B says that, as she had had no contact from the Council, she informed the care home who said the Council would contact her to explain how to proceed. However, she heard nothing from the Council.
18. The Council says the care home contacted its social care benefit team asking who the family should contact about any outstanding care fees because the property had been sold. The team provided contact details for the care home to pass on, but it received no contact from the family.
19. Ms B later contacted the Council which explained it had not received the DPA form. Ms B says it also told her Mrs X could have claimed Attendance Allowance which she was unaware of.
20. Ms B complained to the Council. It accepted there was a delay in sending the DPA form to Mrs X and that, when it did not receive the completed application form, it would have been reasonable for officers to contact her to check whether a deferred payment was required. It also accepted that it did not visit Mrs X before the lockdown in March 2020 and, as officers were unable to visit for the next few months, they should have arranged a telephone appointment to discuss the DPA in more detail. The Council apologised for these failings and offered to write off 50% of the outstanding amount and accept £17,360.28 in full and final settlement of the debt.

Analysis

Deferred payment agreement

21. I find the Council was at fault in that it delayed in sending the DPA form to Mrs X and failed to arrange an appointment to discuss the deferred payment scheme in more detail after Mrs X’s placement became permanent.
22. However, the Council did provide the family with some information about the scheme. It says that, during the assessment process, the social worker sent a copy of a deferred payments factsheet to Mrs X. I have seen no evidence to confirm this, but the Council’s case notes show that on 6 November 2019 it sent her a short-term care letter, residential care factsheets and a financial assessment form. These documents contained information about setting up a DPA.
23. Ms B contacted the Council to chase up the matter after Mrs X’s property was sold. However, it was open to her to do so sooner.
24. Ms B says as the Council did not receive the completed DPA form it should not have continued making payments to the care home without contacting them first.
25. I find the Council acted appropriately by continuing to make payments to the care home pending receipt of the completed DPA form. It must ensure care home residents are not at risk of losing their placement. So, until a DPA is in place, or it is established that the resident is paying the full costs of their care themselves, the Council will ask the resident to pay a provisional contribution based on their income and expenses and fund the balance of the cost of care. This was confirmed in the letter sent to Mrs X on 21 May 2020. It clearly stated that she would be paying full costs with effect from 3 February 2020 pending the DPA being put in place.
26. I consider the Council’s apology and its offer to write off 50% of the debt to be a satisfactory remedy for the uncertainty caused by the delay in sending the DPA form and failing to arrange an appointment to discuss the DPA scheme. I do not consider we could achieve any more than this. Mrs X benefited from the care provided and, in any event, she was aware that she would have to pay towards the cost of her care. She signed the financial assessment form confirming she understood that, when the Council had worked out her financial assessment, it would write to her to confirm how much she needed to contribute. Also, the fact sheets sent to Mrs X explained that care charges apply from the date a resident is admitted to the care home. The family has also benefited from the fact that a DPA was never entered into because, if an agreement had been set up, they would have had to pay administration fees and interest on the loan.

Telephone reviews

27. Ms B says that, in its response to her complaint, the Council said Mrs X was contacted by telephone and fees were discussed with her but she said she did not want her family to be contacted. She says Mrs X recalls a telephone call but says she was only asked whether she was settled in the home and happy to remain there. She does not recall a discussion about finances. Ms B says Mrs X would not have asked for her family to be excluded from such a discussion.
28. Ms B appears to have misunderstood the Council’s comments. The letter stated that a review was completed with Mrs X on 6 May 2020 via telephone and she told the social worker that Ms B did not need to be contacted as she had not been able to visit due to COVID-19 restrictions in the home. The purpose of the telephone call was to complete a review of Mrs X’s placement to ensure it was meeting her care and support needs and not to discuss finances. As Mrs X has mental capacity in respect of her own care and support needs, there was no reason for the family to be involved in the review process.
29. The letter states that a further review was completed in May 2021 via telephone and again Mrs X told the social worker she did not wish Ms B to be involved in the review process. This was an annual review to consider whether the placement continued to meet Mrs X’s care and support needs. It was not to discuss finances. So, again, there was no need for Ms B to be present.

Attendance Allowance

30. Ms B says the family cancelled Mrs X’s Attendance Allowance when she went into hospital. She says the Council failed to make them aware that she was able to start claiming it again when her placement in the care home became permanent in February 2020. She says it did not explain this until January 2021.
31. There is reference to Attendance Allowance in one of the factsheets sent to Mrs X in November 2020. It states that a resident may be entitled to receive Attendance Allowance and provided a helpline telephone number. It was also open to the family to contact the Department for Work and Pensions to find out when Mrs X was able to reinstate her claim.
32. I am satisfied this information was available to Ms B. In any event, no significant injustice was caused as Mrs X did later claim Attendance Allowance and this was backdated. I do not therefore intend to pursue this issue further.

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Final decision

33. I find the Council was at fault in that it delayed in sending Mrs X a DPA form and failed to arrange an appointment to discuss the deferred payment scheme in more detail following her placement being made permanent. However, I am satisfied it has provided a suitable remedy for the injustice caused.
34. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman