Summary: There was fault on the part of the Council in which the way it assumed Ms T would apply for deputyship of her late father’s affairs. It incorrectly put in place a Deferred Payment Arrangement (DPA) without agreement. It has reimbursed the DPA fees and interest which should not have been charged but should in my view go further to recognise the frustration and distress its actions have caused.

The complaint

1. Ms T complains the Council put in place a deferred payment arrangement for her father’s care home charges although he lacked capacity and no-one had legal responsibility for his affairs. She also complains it did not properly review his Continuing Health Care (CHC) funding status.

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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 significant injustice, or that could cause injustice to others in the future we may recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Ms T and the Council as well as relevant law, policy and guidance.
6. Ms T and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

7. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so
8. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves
9. A deputyship is a legal status granted by the Court of Protection in England and Wales. It allows a chosen person, called a deputy, to make choices for someone who cannot make decisions for themselves. This happens when a person lacks mental capacity and did not set up a power of attorney beforehand
10. Someone may own property such as a house or land but have savings less than £23,250. They therefore cannot pay the cost of their care.  Deferred payment agreements allow an individual to defer the cost of meeting their care needs in a care home. It can help people delay the need to sell their home. The agreement can last until death but usually act as a ‘bridging loan’ to give time and flexibility to sell their home
11. The deferred payment agreement scheme is intended to be run on a cost-neutral basis, with local authorities able to recoup the costs associated with deferring fees by charging interest. Local authorities can also recoup the administrative costs associated with DPAs, including legal and ongoing running costs, via administration charges which can be passed on to the individual.
12. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS). NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.
13. Individuals may need care and support provided by their local council and/or services arranged by ICSs. Councils and ICSs therefore have a responsibility to ensure the assessment of eligibility for care and support and for CHC respectively take place in a timely and consistent manner

What happened

14. Mr X was admitted to a residential EMI (Elderly Mentally Ill) placement at a care home in September 2021 after a period in hospital and then at a nursing home where he was assessed by the Council. Mr X had dementia, lacked capacity to manage his own affairs, and no one had power of attorney for him.
15. Ms T had several contacts from the Council about setting up a Deferred Payment Agreement (DPA) to manage the payment of Mr X’s care home charges. The first of these, in October 2021, said, “My understanding is that you are in the process of an application in respect of a Deputyship Order on behalf of (Mr X)…” She says she explained several times she had no responsibility for her father’s affairs and was not applying for deputyship. In December 2021 she received a final email from a finance officer saying, “I will assume from your email that you are not applying for Deputyship and will forward this case to my manager to establish what needs to be done.”.
16. Ms T says in 2024 she was contacted by a social worker asking her to consider applying for Deputyship and so she began the process. However, she says this stalled when she requested a copy of Mr X’s most recent Mental Capacity assessment, which was required to complete the application, and was told the social worker was leaving but would pass on the request. She says she did not hear any more and the application could not be completed.
17. Mr X died in February 2025. Ms T was executor of his will.
18. In April 2025 Ms T complained to the Council about its mismanagement of her late father’s finances. She complained that although there was no formally agreed DPA (as her father did not have capacity to make such an agreement) the Council had charged a set-up fee and interest among the care home fee debt of £123,196. She complained that even though the Council had known since 2021 she would not apply for deputyship, it had not done so itself and so had potentially deprived her father’s estate of benefits such as Attendance Allowance. Finally she queried whether her father’s needs had been reviewed annually in respect of his eligibility for CHC funding.
19. The Council initially replied upholding the complaint that interest and fees had been charged, but did not uphold the complaint that it should have applied for deputyship itself. After a further complaint from Ms T, the Council responded to her again in September 2025 and agreed it had not applied for deputyship, and upheld that part of her complaint.
20. Ms T complained to the Ombudsman. She said nothing had been done by the Council to manage and protect her father’s affairs despite his lack of capacity and his vulnerability.
21. The Council says it would normally have acted on the information from Ms T in 2021 by asking solicitors to make a deputyship application on its behalf. It says “The gross fees are the total care costs, which were not affected by a person’s access to their benefits and other income. The Council pays towards or all these fees whilst the Deputyship Order is pending. Once the Order is awarded a person is expected to reimburse the Council based on their financial situation.
22. The delay in the Deputyship application process meant it took longer to gain access to (Mr X)’s income, so the Council were paying the Gross fees for a longer period on his behalf. With him owning a property he was liable for the full cost of his care, so the debt to the Council when he passed away was higher than it would have been if Deputyship was applied for in 2021”.
23. In respect of the interest and the fees relating to a DPA, the Council has credited the account for those amounts in January 2026.
24. The Council has provided copies of the reviews of Mr X’s needs, including his potential CHC eligibility, which show that his needs were considered but not deemed eligible to proceed to a full CHC assessment.

Analysis

25. There was fault on the part of the Council in the way it put in place a DPA without any agreement and then sought to charge a set-up fee and interest. That has been remedied by the Council’s agreement to credit Mr X’s account with the amount of interest and fees, which it has already done.
26. The Council acknowledges it should have acted differently when Ms T said in 2021 that she would not apply for deputyship. That element of the complaint is outside the timescale of our investigation. Mrs T knew from 2021 that no deputyship had been applied for and therefore possible benefits were not claimed and could have made a complaint about that sooner. It is not feasible now to say what difference that would have made to his estate.
27. Mr X has died and it is not possible to remedy any injustice to him. His care home charges remain payable. However, the Council should recognise the distress caused to Ms T by the receipt of an invoice for care home charges larger than she might have expected.
28. The evidence shows there was ongoing review of Mr X’s eligibility for CHC funding. There is no evidence of fault there.

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Action

29. Within one month of my final decision the Council should apologise to Ms T for its failures to take action sooner and for the way it sought to impose charges associated with a DPA for which there was no agreement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
30. Within one month of my final decision the Council should offer Ms T a payment of £500 which recognises the frustration and distress she has been caused by its actions.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I find fault causing injustice which can be remedied by the completion of the recommendations at paragraphs 28 – 29 above.

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Investigator's decision on behalf of the Ombudsman