Decision Date: 10 Sep 2024
Summary
The LGSCO found fault with West Northamptonshire Council’s failure to provide Mr C with the correct information about the charges and payments associated with the care of his parents-in-law.
Further, the LGSCO found a procedural fault with the Council’s decision to refuse an application for a Deferred Payment Agreement (DPA), which had been a source of financial and emotional distress for the family.
What happened
Both Mr and Mrs D moved to a care home in late 2022 after a hospital stay. They planned to return to living independently in their own home, eventually, but it soon became apparent that this would not be feasible, given their care needs.
The Council conducted a financial assessment to determine how their care should be funded and found that both Mr and Mrs D could afford to self-fund their care. Further, the NHS decided that neither was eligible for free NHS Continuing Healthcare.
Throughout this time, the Council funded Mr and Mrs D’s care home placement which would have given rise to a debt. It seems that this continued until 31st July, after which it was unclear whether Mr and Mrs D self-funded their own care or not – the report does not make clear what the significance was of that date, although it may have been the notification of the decision that they were not eligible for NHS CHC.
At a meeting on the 11th September, an officer from the funding team told Mr C that Mr and Mrs D would be assessed as permanent residents of the care home from this specific date onwards; the officer formally confirmed this by way of written communication the next day. As permanent residents, the value of Mr and Mrs D’s property would not be considered by the Council in their financial assessment for the first twelve weeks of their occupation there.
However, a letter sent by the Council to Mr C on the 2nd October stated that Mr and Mrs D’s care began on the 31st July, meaning the 12-week property disregard would expire on 20th October. While the LGSCO found no fault with the Council’s decision in that regard, it contradicted the funding officer’s written assurance that Mr and Mrs D’s property disregard would begin on 11th September and expire on 1st December. The new, earlier date communicated by the Council would mean Mr and Mrs D would have to fund the full cost of their care much sooner than they had expected.
On 21st September, Mr C (the son-in-law of Mr and Mrs D) had applied for a Deferred Payment Agreement (DPA) from the Council on their behalves, so that he and the couple’s daughter could fund the care while he arranged to sell their property for them which was his stated intention. The Council refused this application on the basis that Mr and Mrs D did not have enough equity in their property to cover the cost of their care for three and a half years; their equity would cover only 24 months, which the Council described as ‘unsustainable’ to the LGSCO investigator, despite the intention to sell that the Council had been assured of.
Mr C complained to the Council on the 28th October and raised that Mr and Mrs D did not have enough liquid funds at the time to pay for their care. The Council responded on the 18th January, reaffirming its decision that the 12-week property disregard began on 31st July and failing to acknowledge Mr C’s anxiety that Mr and Mrs D’s placement at the care home was at risk due to their financial situation.
The Council accepted that it had told Mr C different start dates and had not made it clear that the date given by the funding officer was merely provisional, stating that it planned to change its charging letters to prevent future confusion.
In response to the LGSCO’s inquiries, the Council said it had told Mr C that, until Mr and Mrs D’s property had been sold, it would not demand full payment. Mr C then claimed that the Council’s refusal of a DPA placed pressure upon Mr and Mrs D to sell their property at a price lower than market value because the money was obviously needed.
Consequently, Mr C complained to the LGSCO on the grounds that the Council:
· Wrongfully refused a DPA.
· Did not consider its prevention duty, under which it must provide continuing care to ensure people’s care and support needs do not increase.
· Supplied misleading and mistaken information about the time at which Mr and Mrs D were classified as ‘permanent residents’, which determined the period of the 12-week property disregard.
What was found
The LGSCO found fault with the Council’s failure to perform their preventative duty as they did not consider whether Mr and Mrs D could fund their care before selling their property, placing them at risk of eviction from their care home. While the Council told the LGSCO that Mr C was informed of its decision to fund Mr and Mrs D’s residency until their property was sold, there is no evidence to support their claim and it was not expressed in writing.
Consequently, the LGSCO found fault with the Council’s failure to communicate effectively with Mr C – both in terms of its decision to provide interim funding and in providing Mr C with conflicting information regarding the date of the 12-week property disregard. This caused Mr C emotional distress and cost him time.
The LGSCO found a procedural fault with the Council’s failure to make a reasonable decision with regard to a DPA. The Council did not explain why Mr and Mrs D were ineligible and its claim that their equity was not sustainable by only covering care costs for 24 months conflicts with the DPA eligibility criteria provided on West Northamptonshire Council’s website, which stated that people must have ‘enough equity in [their] home to cover at least 12 months of care costs’. Consequently, the LGSCO criticised the Council’s failure to communicate a consistent policy, as well as its overly restrictive interpretation of government guidance.
[We could not find that guidance referred to by the LGSCO – the sustainability tool referenced in the Guidance was no longer available on the link provided, but we have found it and the link is in the ‘Points’ section below in the excerpt from the Guidance.]
The Council agreed to the following action to remedy the injustice it caused Mr C and to improve its services going forward:
· Within a month: apologise to Mr C and make a symbolic payment of £450 for the time, trouble and emotional distress he suffered due to the Council’s various faults.
· Within three months, to
o review its guidance on DPA so that it is consistent with its current policy and the rules;
o remind staff of their preventative care duties and the importance of timely and clear communication – this includes setting out how they have reached a decision.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Normally, when one person leaves the household, to go into residential care, one’s house is not counted because the other member of the couple is carrying on living there. When the second person leaves, the house becomes counted for both people if they are both in a care home.
In the scenario in this report, the couple were moving as one, and were only in fact entitled to the disregard from the first day their care after hospital discharge developed into the nature of permanent care.
Their post-discharge placements may have been Discharge to Assess in nature, free to them both, allowing a period of consideration – or reablement, free to them to see if they could be returned to a level of independence that would open up other options. Or it could simply be that the Council was coping with backlog and did not get around to a needs or financial assessment until some 6 months after the admission to a care home. During that time, the couple would have been assessable for a charge but based on the Council’s rate and the charging regulations, ie less than full cost of two privately funded placements.
Mr C wanted the Council to refund the fees for Mr and Mrs D incurred over the six weeks when the Council brought forward the end of the 12-week disregard period to account for the quick undervalue sale he felt forced to enter, to fund care fees. The investigator refused because Mr and Mrs D had got more than the benefit of a 12-week disregard before they had to self-fund. One is not told whether that whole initial period between 2022 and July 2023 was provided for without regard to the couple’s capital position, given that the disregard had not even stipulated to have commenced, or whether the position of the LGSCO in the end that they’d had more benefit than their strict legal rights meant that they’d merely had a subsidised cost for that first 6 months because they would have paid charges based on income alone.
The real weakness in the report is that one cannot tell how the mistake arose or why the Council was not criticised for not making the funding arrangements for the initial period of care more explicit. If the 31 July was the CHC decision, the only basis on which we could envisage that same date being the commencement of permanent residential care would be if that consequence linked to that anticipated decision had been set out in writing by way of the Council’s statement of willingness to meet the needs in the first instance, despite the couple’s self-funding status.
It is also rather unsatisfactory that nothing is said about this couple’s mental capacity to contract in their own names, and the status, if any, in terms of legal authority to enter into a DPA on their behalf, of Mr C such as power of attorney or deputyship, without which no DPA would ever be valid.
The sustainability mistake which enabled the LGSCO Investigator to say that the decision was wrongful was a simple public law one of not taking relevant considerations into account or fettering of discretion on the part of the officers supposedly using the sustainability tool – that factor being the stated intention of the son in law to sell the property for his parents in law so that they could pay for their care. That was unlikely to take 24 months, on any footing.
We have not seen reference to the s2 Prevention Duty in the Care Act used in this context before this report, although we do not have knowledge of every single finding of fault. The focus here was on the failure to engage with the question of the couple’s liquid assets for self-funding before their money ran out.
With regard to the DPA scheme, we have copied this information from the statutory Guidance:
9.5 The scheme is universally available throughout England, and local authorities are required to offer deferred payment agreements to people who meet certain criteria governing eligibility set out in paragraph 9.7 below (the qualifying criteria) for the scheme [that is regardless of sustainability, according to the DH tool, but please note we are not sure we agree that that is the right way to characterise the duty – the regulations do not make this clear in our view: see here https://www.legislation.gov.uk/uksi/2014/2671/contents/made].
Local authorities need to ensure that adequate security is in place for the amount being deferred, so that they can be confident that the amount deferred will be repaid in the future. Local authorities are also encouraged to offer the scheme more widely to anyone they feel would benefit who does not fully meet the criteria.
9.14 A local authority must offer a deferred payment to someone meeting the qualifying criteria for deferred payment agreements and who is able to provide adequate security for the debt (obtaining a first land registry charge on their property, see ‘Obtaining security’ at paragraph 9.58); and may offer a deferred payment agreement to others who do not meet the criteria, at their discretion.
9.56 Local authorities and individuals should also consider the length of time that a person’s intended contribution to care costs from savings would last, if they intend to contribute to their care costs from their savings. This should include consideration of the impact on their care if a person’s savings are depleted (normally this would involve increasing the amount the person is deferring).
9.58 The department has developed a tool to aid local authorities in assessing sustainability. Local authorities may use this tool to aid discussions and decisions about the amount to be deferred, but local authorities retain final responsibility for (and have discretion over) decisions taken about the agreements they enter into.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s West Northamptonshire Council (23 017 013) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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