Summary: Mr C complains the Council provided inaccurate charging information for residential care, and wrongly refused an application for a deferred payment agreement. The Council is at fault for failing to properly advise Mr C of charges and payments it was willing to make. This caused him stress, time, and trouble. To put things right the Council has agreed to apologise to Mr C, make him a symbolic payment, and make service improvements.

The complaint

1. Mr C complains about charges for his parents’ in law, Mr and Mrs D’s, residential care. Mr C complains the Council:
• wrongly refused a Deferred Payment Agreement (DPA),
• failed to consider its continuing duties when it decided to refuse the DPA, and
• provided misleading and mistaken information about when the Council assessed Mr and Mrs D as “permanent residents”.
2. Because of these failings Mr C says he has had time and trouble in pursuing a DPA, and the anxiety that Mr and Mrs D did not have enough savings to cover the cost of their residential care.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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(i), as amended)

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How I considered this complaint

5. I spoke with Mr D and considered information he provided as part of his complaint. I made enquiries of the Council and considered its response. I also considered:-
• Mr and Mrs D’s financial assessments and case records;
• Care Act 2004 and the associated Care and Support Statutory Guidance;
• Care and Support (Charging and Assessment of Resources) Regulations 2014;
• Council’s website page, Deferred Payment Agreement | West Northamptonshire Council (westnorthants.gov.uk)
• Council’s “Guide to Deferred Payments” and “Deferred Payment Policy” January 2024.
6. Mr C and the Council could comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

7. Mr and Mrs D lived independently in their own home. In late 2022 following a hospital stay they both went to a care home with a view to returning home.

What should have happened

8. The Care and Support Statutory Guidance says the prevention duty applies to all adults, including those with needs for care and support, whether their needs are eligible and/or met by the local authority or not. This means a council must support people to prevent their needs increasing or aim to reduce needs.
9. A Council must disregard a property value in a financial assessment for the first 12 weeks of a permanent care home placement.
10. A Deferred Payment Agreement (DPA) is the agreement of a council to provide financial help with a person’s care home fees based on repayment when their property is sold or from their estate when they die.
11. West Northamptonshire Council “Deferred Payment Policy” dated January 2024 says for the Council to make a DPA with a person they must have enough equity in their property to cover the costs of a care home.
12. Paragraph 6.27 says “ Where a property is used as security for a deferred payment agreement, the equity limit is set at;
• the value of the property,
• minus ten percent,
• minus the lower capital limit (for financial year 2023/24, this will be £14,250).
13. West Northamptonshire Council website page Deferred Payment Agreement says, people must have “enough equity in your home to cover at least 12 months of care costs”.

What happened

14. When it became clear Mr and Mrs D could not return home the Council assessed them for services and decided they had enough finances to pay and self-fund their own care. Following an NHS decision to refuse free NHS Continuing Healthcare funding the Council continued to fund Mr and Mrs D’s placement until 31 July 2023.
15. At a meeting on 11 September an officer of the charging team told Mr C that Mr and Mrs D would be assessed as permanent residents from 11 September 2023. This would result in the Council disregarding the value of their property until 1 December. The officer confirmed this in writing on 12 September. On 21 September Mr C applied for a DPA.
16. The Council wrote to Mr C on 2 October saying Mr and Mrs D’s permanent care would start from 31 July and the 12 week property disregard would end on 20 October.
17. On 27 October the Council refused Mr C’s application for a DPA because Mr and Mrs D did not have enough equity, (£200,000) in their property to meet their care costs for three and a half years. Mr C told the Council he only needed the DPA for long enough to sell the property. Mr C complained the next day explaining there were inadequate liquid funds to pay for Mr and Mrs D’s care.
18. The Council responded to Mr C’s complaint on 18 January. It did not change its view on the start date for the 12 week disregard. It accepted that it told Mr C different start dates and the letters did not explain the initial date was provisional. The Council said that it had changed the charging letters to avoid future confusion but did not address Mr C’s concern that Mr and Mrs D’s placement was at risk.
19. In response to my enquiries the Council says that in deciding on a DPA the equity within the home must be sustainable and cover the costs of care for three years. It says this time-period is in a toolkit linked to the Care and Support Statutory Guidance; but is no longer available.
20. Mr and Mrs D’s equity would cover 24 months and the Council considers this is not sustainable. The Council told Mr C it was aware the property was on sale and would continue to invoice Mr and Mrs D but not demand full payment until Mr C sold the property.
21. Mr C says because the Council refused a DPA, and Mr and Mrs D did not have liquid funds to pay for their care, they felt pressured to sell the property at a lower than market value.

Was there fault causing injustice?

Start of 12 week disregard

22. The 12 week disregard starts when a person enters a care home with the intention of moving in permanently. In this complaint the Council says it made this decision on 12 July. I find no fault in the Council reaching this decision as there is nothing to suggest this was temporary care for Mr and Mrs D. Indeed the Council allowed until 31 July as a start date to charge Mr and Mrs D as permanent residents.
23. At this point the Council says Mr and Mrs D were self-funders as they had £12,000 of capital each and had a property to sell. While this was correct the Council did not consider its preventative duty and whether Mr and Mrs D could meet the costs of their care until they sold their property. The failure to do so left them at risk of eviction from their care home. The Council says an officer told Mr C the Council would fund the placement until the property was sold. The Council did not put this in writing or tell Mr C it was paying the care home. The lack of communication and the failure to properly consider the preventative duty is fault.
24. The Council has accepted it gave Mr C wrong information when it provided the start date for the 12 week disregard. It has apologised to Mr C and taken suitable action to ensure this does not happen again. The delay in providing Mr C the new dates meant he had two weeks before the disregarded period ended. Because of this Mr C had avoidable time, trouble, and distress.

Deferred Payment agreement

25. The Ombudsman is unable to challenge a decision where there is no procedural fault. The Council was entitled to refuse Mr and Mrs D a DPA. However I consider there was procedural fault because:
• although the Council is entitled to consider the sustainability of a DPA based on the available capital in the property it has not set out why Mr and Mrs D are ineligible when they would each have over £70,000 to cover the costs of care. This would meet the requirements of the Council’s written policies. The failure to properly communicate and make a reasoned decision is fault.
• the Council also has conflicting information about the equity eligibility ranging from 12 to 42 months. The Council’s failure to communicate a consistent policy, some of which is considerably more restrictive than government guidance, is fault.
26. I consider Mr and Mrs D met the eligibility criteria for a DPA and the Council was at fault for rejecting Mr C’s application.

Complaint handling

27. The Council delayed in responding to Mr C’s complaint it took over two months to provide a substantive response to Mr C. The complaint response also failed to properly consider the risk of Mr and Mrs D losing their care home places because of a lack of funds. This caused Mr C frustration, time, and trouble.

Remedy

28. Because of the faults I have identified Mr C had avoidable time, trouble, and stress of trying to sell Mr and Mrs D’s property quickly. When someone has suffered an injustice, we try to put them back in the position they would have been had that error not occurred. Our focus is on restoring services that have been denied and taking practical steps to put things right. Where that is not possible, we will consider a payment. This is usually a modest amount whose value is intended to be largely symbolic, rather than purely financial. It is not our role to assess economic losses or award compensation. 
29. In response to my draft decision Mr C says the Council should repay care fees for Mr and Mrs D for the six weeks when the Council brought forward the end of the 12 week disregard period. This is around £13,000. Mr C says this is to account for the quick undervalue sale the Council forced him to enter, to fund care fees.
30. While this may have been the case I cannot remedy any potential loss of a property value. This is because Mr and Mrs D did get more than the benefit of a 12 week disregard which is what the law says they are entitled to. I cannot predict what would have happened but for the faults I have identified and what Mr C would have achieved if he sold the property later; as property prices can go up or down. The financial remedy is a symbolic payment to recognise the frustration, time, trouble, and distress caused by the faults I have identified.

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Agreed action

31. The Council acted with fault which caused Mr C injustice. The Council has agreed to take the following actions to remedy Mr C’s personal injustice and improve services.
32. Within one month of the final decision the Council will:-
1. apologise to Mr C and make him a symbolic payment of £450 for the confusion, frustration, stress and the avoidable time and trouble he has had;
33. Within three months of the final decision the Council will:
1. review the published guidance and the Council’s policy on Deferred Payment Agreements so they are consistent;
2. remind relevant staff members of the guidance, their discretionary powers, and preventative duties;
3. through a staff circular or team meeting remind staff about the need to communicate financial decisions promptly, clearly and in writing. This includes any dates or decisions;
4. through a staff circular or team meeting remind staff about setting out how they have reached financial decisions including how they have made calculations;
5. remind staff about the need to respond to complaints in a full and timely manner.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I consider there has been fault by the Council which has caused Mr C injustice. I have completed my investigation and closed the complaint on the basis of the agreed actions above.

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Investigator's decision on behalf of the Ombudsman