FP/999/02/15. decision: All Divisions

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1 Report to Cabinet Date of Meeting: 24 March 2015 AGENDA ITEM 14 Forward Plan reference number: FP/999/02/15 County Divisions affected by the decision: All Divisions Title of report: Charges for Deferred Payment Agreements Report by: Councillor Dick Madden, Cabinet Member for Adults and Children Responsible Director: Dave Hill Executive Director of People Commissioning Enquiries to: Dean Leather - Income Finance Manager (Corporate Services) Telephone: Purpose of report 1.1. To consider the charges Essex County Council (ECC) should levy in relation to deferred payment agreements (DPAs). 2. Recommendations 2.1 Agree that ECC should charge interest on deferred payments agreements (DPAs) for the lifetime of the agreement, at the relevant rate defined in the Care and Support (Deferred Payment) Regulations 2014 with effect from 1 April Agree an administration fee of 456 per Deferred Payment Agreement from 1 April 2015.

2 3. Background and proposal Deferred Payment Agreements 3.1 The Care Act 2014 is the biggest reform of adult social care since The new law sets out a clearer national approach to financial assessment and charging, including the introduction of a new Universal Deferred Payment Scheme, that ECC will follow. 3.2 When someone moves into permanent residential or nursing care the value of their main home may in some circumstances be taken into account when assessing their financial contribution towards their care costs. Some people find that they may have to sell their property to pay for residential or nursing care costs. 3.3 A Deferred Payment Agreement (DPA) is an arrangement whereby people are prevented from having to sell their property during their lifetime to fund their care costs. This is achieved by the council paying the fees to the provider upfront and then recovering the costs from the service user at a later date. A deferral can last until death, however many people choose to use a deferred payment agreement as a bridging loan to give them time and flexibility to sell their home when they choose to do so. The arrangement is to defer the payment, not to write it off. 3.4 Local authorities currently have the power to offer DPAs but are not obliged to do so. From 1 April 2015 the Care Act makes it mandatory for local authorities to implement a universal DPA scheme which allows anyone that meets a national set of eligibility criteria to access the scheme. Although ECC already runs a DPA scheme it is expected that more people will become eligible under the new universal criteria, and will wish to access the scheme from 1 April 2015 when the Care Act comes into force. 3.5 The Care Act 2014 allows local authorities to charge interest on DPAs to reflect the fact that the authority has to pay the provider up front but can t recover the costs until the property is sold. It is also allowed to charge administrative costs for arranging deferred payments agreements to recoup the costs of running the scheme. The administration fee is not a new charge, having being levied under the old scheme; however charging interest is a new discretionary power under the Care Act. Interest charges cannot exceed the relevant interest rate prescribed in regulations. 3.6 It is proposed that ECC introduce an interest charge for new DPAs from 1 April 2015, at the relevant interest rate allowable under Care Act regulations. The rate is linked to the 15 year average gilt yield (as determined by the Office for Budget Responsibility); this is currently 2.5% but is updated on 1 January and 1 July each year, plus 0.15% to allow for the risk of any default. The interest rate from the period 1 April 2015 to 30 June 2015 will therefore be set at 2.65%. 2

3 3.7 Interest would only be charged on new DPAs agreed after 1 April 2015 because the current agreements do not include a term permitting interest to be charged. The statutory guidance (at paragraph 23.20) states that local authorities must not ask service users to sign new agreements under the new legislation unless the agreements have expired for any reason. 3.8 It is also proposed that ECC adjusts the level of its administration fee for arranging a DPA from 450 to 456 to reflect the current and expected costs of operating the new scheme. This is a one-off charge for each new DPA taken out and will be reviewed annually. 3.9 Growing demand for social care services, together with constrained resources means ECC needs to make sure it gets best value from all resources. ECC believe it is right that we recoup administration costs and charge interest on Deferred Payment Agreements, where it is legally allowable ECC will not make a profit from the new administrative charge, since we will only recover our costs of running the scheme. Consultation and Engagement 3.11 During the period November 2014 to January 2015 ECC carried out a consultation asking for the views of Essex residents about how a universal deferred payments scheme could work in Essex A total of 57 people responded to the survey. Of the total, 62% of respondents were female, 28% male and 10% preferred not to say Respondents were asked whether they agreed or disagreed with the proposal that Essex County Council should charge interest on deferred payment agreements, which allow people to avoid having to sell their home in their lifetime, to ensure we can recover our costs and get best value for money Out of the 34 respondents 50 % either agreed or strongly agreed with the proposal regarding deferred payment agreements, 12 % were unsure and 38% either disagreed or strongly disagreed with the proposal. Interest on Deferred Payment agreements Response Total Response % Strongly agree 5 15% Agree 12 35% Neither agree nor disagree 4 12% Disagree 9 26% Strongly disagree 4 12% Total % 3

4 3.15 The balance of opinion was in favour of the proposal, and given that the charge only relates to people who have sufficient means to afford it, it is felt that an interest charge should therefore be introduced from 1 April Policy context and Outcomes Framework 4.1. The Care Act contains provisions for a universal deferred payment scheme, whereby care costs can be accrued against a person s property value and repaid at a later date when the property is sold. The intention is that no one has to sell their home in their lifetime to pay for care. All authorities will have a duty to offer deferred payments, with consistent rules setting out eligibility, what fees can be deferred and for how long The regulations specify that the local authorities must offer a deferred payment agreement if someone meets all of the following criteria: (a) has eligible needs which are to be met by the provision of residential care (b) has less than 23,250 in assets excluding the value of their home (c) has a property against which a legal mortgage charge can be placed (d) whose home is not occupied by a spouse or dependent (i.e. property is disregarded for charging purposes) 4.3. The Local Authority also has the option to offer DPAs even if not all of these criteria are met; however ECC does not currently plan to exercise this right The universal DPA scheme is a key element of the Care Act, and is likely to prove popular with adults needing care and support who may otherwise have needed to sell their home to pay towards their care costs. In order for the scheme to operate in a cost neutral way, as envisaged by the Department of Health, the charging interest and recouping administration costs is necessary. The rate at which interest can be charged will be set nationally and administration fees can only cover the cost to the council of setting up the DPA. There is no profit to the Council from these charges This decision is relevant to the achievement of a number of the County Council s corporate outcomes, specifically: People in Essex enjoy good health and wellbeing People in Essex live in safe communities and are protected from harm People in Essex can live independently and exercise choice and control over their lives 5. Financial Implications 5.1. As at the end of January 2015 ECC had 364 DPAs in force, with total accrued costs on the balance sheet of 10m. 4

5 5.2. It is anticipated that around 300 additional DPAs could be offered each year as a result of the new universal rights under the Care Act; however actual take up will be dependent on the number of people that wish to exercise their right to access the scheme, and could therefore vary from this projection DPAs are accounted for as an asset on the ECC balance sheet, since the cost will be recovered at a future point in time. There is a financing cost of using ECC s cashflow to fund the scheme; however this will be recouped from the interest rate chargeable on agreements. If any loans are written off this would result in a cost to ECC; however the risk is very low since all DPAs are secured by a legal charge on the property as a condition of the agreement and the amount that be secured against a property is limited to 90% of the property value less 14,250. The interest rate includes an element to cover this small risk of default Allowable interest charges are set out in the Care Act regulations and are linked to the 15-year average gilt yield, as set out by the Office for Budget Responsibility (currently 2.5%), plus 0.15% to cover the risk of default. The rate is set at a level that will allow ECC to cover the costs of financing the scheme, and is therefore expected to be cost neutral overall All operating costs of the scheme can be recovered through an administration fee. ECC currently charge a 450 administration fee; it is proposed to increase this slightly to 456 per agreement to reflect current cost of administering the DPA scheme. The charge will be reviewed annually There should be no overall additional net cost to ECC of operating the new universal scheme, subject to the number of people using the scheme being in line with projections. If the number of people who take up the scheme is lower than anticipated there may be a small net cost to ECC in the short term, as a result of an additional officers being employed within the income team to deal with the expected increase in volume of agreements. 6. Legal Implications 6.1. The Care and Support (Deferred Payment) Regulation 2014 require the council to provide deferred payment agreements in many circumstances. They also allow the Council to charge interest at a rate which does not exceed a prescribed maximum, which is known as the relevant interest rate. It is proposed that the Council will charge interest using this rate and the proposals are therefore lawful. 7. Staffing and other resource implications 7.1. The cost of two additional officers within ECC s income team have been budgeted for from 2015/16, to deal with the expected increase in demand for the DPA scheme. Further staff may be required to administer the scheme but will only be recruited if demand necessitates it; the costs of any additional 5

6 posts would be recovered through the increased number of administration charges levied. 8. Equality and Diversity implications 8.1. In making this decision ECC must have regard to the public sector equality duty (PSED) under s.149 of the Equalities Act 2010, i.e. have due regard to the need to: A. Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act. B. Advance equality of opportunity between people who share a protected characteristic and those who do not. C. Foster good relations between people who share a protected characteristic and those who do not include tackling prejudice and promoting understanding The protected characteristics are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation The PSED is a relevant factor in making this decision but does not impose a duty to achieve the outcomes in s.149, it is only one factor that needs to be considered, and may be balanced against other relevant factors The charging of interest and administration fees for DPAs, as set out in this paper, will not adversely impact any group with protected characteristics as defined in the Equality Act The new Universal DPA scheme will benefit older people in particular, through offering an increased choice of how to finance care costs, and should reduce the number of people who have to sell their home during their lifetime to pay for care. It should be noted that DPA charges and interest are only payable by people who have sufficient assets to be eligible for the scheme. All charges for direct care and support are subject to a financial means test and are therefore only payable by those who can afford it. 9. List of Appendices Appendix 1 Equality impact assessment. 10. List of Background Papers The statutory guidance and regulations are available on the Department of Health website via: Analysis of consultation responses 6

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