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CHAPTER 7 BARRIERS AND DETERRENTS TO APPLYING FOR A DPA
Introduction
7.1 A specific remit of the research was to identify barriers that prevent care home residents and their families from applying for a DPA. The research has identified 4 main barriers, as listed below. The section also discusses "transfer of ownership" which was identified by local authority representatives interviewed as a factor contributing to the low take-up of deferred payment arrangements.
Mixed implementation of policy by local authorities
7.2 The research has found varying practices across local authorities in terms of offering and promoting DPAs and this is likely to have acted as a barrier to uptake. Further, some local authorities were found to be not offering residents any vehicle by which to defer care home fee payments (e.g. Stirling Council). Other local authorities prefer using Charging Orders to achieve the same outcome as DPAs (some such authorities admitted that their legal departments had yet to finalise a contract they could use should a resident wish to pursue a DPA). Finally, a small minority offer DPAs, without simultaneously offering residents the option of achieving a deferred arrangement through the use of Charging Orders. This range of practices has meant that, depending on where the resident lives, they may never be given the opportunity to defer payments, either through a DPA, or by the local authority applying a Charging Order to their property. Clearly this has a major impact on applications for, and take-up of, DPAs, and more broadly, on care home residents across Scotland in relation to having the option to be able to defer the sale of their home to pay for care home fees.
Information and communication
7.3 One of the main barriers that exist with respect to individuals applying for a DPA is lack of information being passed by local authorities to residents about the ability to enter into such an arrangement with the local authority in the first place. The research has shown that the level of written information provided is, at best, limited and, at worst, non-existent. Residents have also experienced various levels of communication difficulties with local authorities, even after having made initial enquiries about deferring care home fee payments.
Up-front costs associated with DPAs
7.4 One of the other main factors deterring care home residents and their families from entering a DPA is the up-front cost associated with setting up a DPA. These costs include lawyers fees as well as charges (up to £500) levied by the local authority. Many of the local authorities that routinely offer residents a DPA as an option for deferring care home fees also, simultaneously, make residents aware of deferring payments through the use of a Charging Order, with no associated up-front costs. Residents are also informed about the length of time the DPA is likely to take to set up, compared with the Charging Order. Faced with this choice, residents have uniformly opted for the arrangement with no up-front costs. Cost and timing issues were factors reported by local authorities as being important in their decision to offer DPAs at all, and in advising residents about the options available which, in turn, impact on resident up-take. One local authority representative described a DPA as a "convoluted approach with very little return for the resident or the local authority", in comparison to the Charging Order regime. Focus group participants reinforced the view of cost as a deterrent, and suggested that costs should be kept to a minimum to ensure inclusiveness for all older persons.
The DPAs process
7.5 Both relatives who took part in the research who had actually set up a DPA thought that the level of bureaucracy surrounding the DPA process was quite off-putting. Whilst they themselves were not deterred by the form filling and level of information required, they said that other members of their family had expressed a desire to terminate the process, and simply sell the property. The research confirmed that the period surrounding the placement of a relative into a care home is very stressful, and it is clear that any further stress due to time-consuming form filling and information gathering would be off-putting at this time. Local authority representatives also told us that many relatives are put off applying for a DPA when they discover what is involved. Focus groups with community-based older people confirmed this view, with many saying that they would find a lengthy application process a deterrent.
7.6 Related to the issue of "process", the need for residents to have capacity to enter into a DPA, or have power of attorney arrangements in place to allow the process to be pursued on their behalf, was noted as a potential barrier to uptake of DPAs.
Transfer of ownership
7.7 All of the local authority representatives who participated in the research stated that, in their view, a noteworthy factor contributing to the low uptake of DPAs was the practice amongst families of "transfer of ownership". This is the practice whereby the property belonging to the prospective care home resident is transferred to another, usually younger, member of the family. All local authority representatives believed this practice was becoming more common, and that, as a result, fewer people entering a care home had a property to be taken into account in calculating contributions to care home fees. Hence, fewer care home residents were required to make significant contributions to their costs, and fewer were interested in the option of deferring payment.
7.8 Alongside this interview evidence, it is, though, important to note that there are statutory arrangements covering this situation. Under section 25(1) of the National Assistance (Assessment of Resources Regulations) 1992 as amended, the local authority may consider that the resident has deprived him/herself of a capital asset in order to reduce his/her care home costs. Indeed, the local authority may treat the resident as still possessing the actual value of the property. In reaching a decision about deprivation of capital, local authorities are expected to take into account the timing of the transfer. For example, if an older person who owned a property was receiving significant levels of home care, or was planning to enter a care home, then the local authority could actively pursue such a case. However, it would be less clear cut, and more difficult for the local authority to pursue, if a resident had disposed of the property at a time when he/she was fit and healthy and had not foreseen the need to move to residential accommodation. The information from local authorities suggests that families are transferring properties at this early "less than clear cut" stage, when the owner of the property has no care requirements.
7.9 However, even when families transfer ownership at a much later stage, when it would be much easier for a local authority to show 'deprivation of capital', some local authorities acknowledged that these were difficult cases to pursue as it is the older person, and not the beneficiary, who would be the subject of legal action. One local authority representative stated that it "(does not) look good for local authorities to be hounding older people residing in care homes".
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