Summary: Ms Y complains the Council has not exercised its discretion to disregard the value of her foster mother’s home. Ms Y says she gave up her home to care for her foster mother and could be left homeless if the house is sold to cover care home fees. The Ombudsman does not find fault in how the Council considered whether to exercise its discretion.

The complaint

1. The complainant, who I refer to as Ms Y, complains the Council has not exercised discretion to disregard the value of her foster mother, Miss X’s, home. She says she gave up a home for life in order to care for Miss X and could now be left homeless if the equity in Miss X’s home is spent on care fees. Ms Y says the Council has not properly considered relevant guidance, which says the Council may exercise discretion in an example very similar to hers.

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What I have investigated

2. I have investigated how the Council decided whether to apply its discretion to disregard the value of Miss X’s property.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’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 considered the information Ms Y provided and spoke to her about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Ms Y and the Council for their comments.

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What I found

Legislation and Guidance

6. The Care and Support (Charging and Assessment of Resources) Regulations 2014 (“the Regulations”) set out the rules for charging for residential care. When councils arrange a care home placement, they must follow these rules when completing a financial assessment to decide how much a person must pay towards the costs of their residential care.
7. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they must only pay an assessed contribution towards their fees.
8. Councils must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
9. Councils may normally include the value of a person’s home in the financial assessment when they move into a care home. However, it cannot do so if any compulsory disregards apply. The Department of Health and Social Care has published the Care and Support Statutory Guidance (“the Guidance”), which gives details and examples of the compulsory disregards.
10. Councils must disregard the value of a person’s home where they are no longer occupying the property, but it is occupied as their main and only home by their son or daughter. This applies to birth children, stepchildren and adopted children. However, the list does not include former foster children who were not formally adopted.
11. The Guidance also sets out situations in which councils may disregard the value of the home on a discretionary basis. It says councils need to balance their discretion to apply a disregard with the need to ensure a person’s assets are not maintained at the public expense. It gives an example of an appropriate disregard as where it is the ‘sole residence of someone who has given up their own home to care for the person who is now in a care home’.

Background

12. Miss X and her sister fostered Ms Y when she was child. Ms Y remained in contact with the sisters throughout her life and always saw them as her relatives.
13. In 2012 Miss X was admitted to hospital following a fall. She had developed dementia and was malnourished. The hospital discharged Miss X to a respite placement in a care home a few days later. Miss X remained at the home for eight months.
14. In mid-2012 Miss X returned home. Ms Y moved into the home to care for Miss X. Ms Y says Miss X told her that her sister had always wanted her to inherit the family home. If she moved in to care for her, so she did not have to go back into a care home, Miss X would leave her the home.
15. Ms Y gave up her job to care for Miss X. Ms Y was working in a job that provided accommodation. Ms Y says that if she had continued to work there until retirement the owner would have allowed her to remain, as a home for life. She says he had done the same for others living in the accommodation.
16. Ms Y cared for Miss X until 2015. In mid-2015, while Miss X was in respite care, Ms Y contacted the Council and said she would like to move out. She sought an assessment for Miss X as she was not sure she could manage at home without support. At that time, Miss X was deciding whether to return home or stay in the care home.
17. A couple of months later, Ms Y contacted the Council again to confirm Miss X had decided she would stay in the care home due to a worsening of her condition. Ms Y said she was going to remain living in the family home and would pay rent to Miss X. Miss X was self-funding as her savings were above the capital threshold. It does not appear from the Council’s later financial assessment that Ms Y paid rent to Miss X.
18. Ms Y says Miss X hoped to return home to her care again. However, her condition worsened further and in 2016 she went into to hospital. She was then discharged from hospital needing nursing care and entered a nursing home.
19. In mid-2018 an officer from the Council visited Ms Y to conduct a financial assessment for Miss X. Ms Y applied to the Council to disregard the value of Miss X’s home from the financial assessment.
20. The Council decided the compulsory disregard for a home occupied by the person’s child did not apply. As a foster daughter that was not formally adopted, Ms Y did not meet the criteria for the mandatory disregard. It instead considered whether to apply a discretionary disregard. However, it decided not to use its discretion.
21. Ms Y asked to appeal the Council’s decision in late 2018. She provided letters of support from various relatives of Miss X. Ms Y said she had given up her job and accommodation to care for Miss X. She now had a new job but the income was very low and if the Council forced her to sell the house, it would make her homeless.
22. The Council wrote to Ms Y outlining how it had considered the matter. It remained of the decision not to apply a disregard. It gave several reasons, including:
• While Ms Y gave up accommodation to care for Miss X, it was provided through her employment and she did not own the property.
• The Council offered a deferred payment agreement (DPA) should she wish to continue living in the property.
• The Council did not consider including the property in the financial assessment would make Ms Y homeless.
23. In mid-2019 Ms Y submitted a second stage appeal. She said the Council did not consider the example in the Guidance of when it was appropriate to apply a discretionary disregard. She said the example was the same as Ms Y’s the circumstances of Ms Y’s case, in that she had given up her own home to care for Miss X, who was now in a care home. Ms Y said her close relationship with her foster parents meant it was similar to an adoption arrangement and the Council should give heavy weight to this.
24. Ms Y also reiterated that she could become homeless if the Council did not disregard the property.
25. The Council did not uphold Ms Y’s appeal. It accepted Ms Y had left her previous job, which provided accommodation. However, it said such accommodation was a usually a condition of continued employment. on leaving that employment at any time she would have needed to find alternative accommodation. It said the move to Miss X’s home was similar, in that she lived with Miss X for a time, rent, board and lodgings free.
26. The Council did not accept Ms Y was at risk of homelessness. It said she was still of working age. It estimated the worth of the property and judged that, while it could not determine the cost of care for the rest of Miss X’s life, it was reasonable to judge that enough equity should remain in the property for Ms Y to purchase a property. It said Ms Y could also mitigate any decrease in equity by paying rent to Miss X. The Council again offered a DPA.
27. Ms Y says the equity in the property will depreciate by £35,000 a year in line with her current care fees. She says this means the equity will reduce below the threshold at which she could purchase another property within three years.
28. The Council says it is impossible to know the rate at which equity will reduce in the property. It says when Miss X’s capital drops below the threshold it will need to complete a care assessment, determine if her needs are being met and negotiate any care fees. The Council has normal rates it applies based on the needs of the individual. However, it cannot make a judgement on what it will pay towards the care fees until such time as it completes the assessment.
29. In respect of Ms Y’s relationship with her foster parents, the Council said it did not believe this must carry more weight than any other family member who is not a qualifying relative.

Findings

30. As outlined at Paragraph 3, I cannot question the right or wrong of the Council’s decision unless there is evidence of fault in the way it made the decision. In this case, the Council decided whether to exercise a discretionary power. I have therefore investigated whether the Council properly considered all the relevant factors when making its decision. I have not found evidence of fault in how the Council considered the matter.
31. Ms Y says the Council did not properly consider several points in deciding not to apply a disregard. These include:
• The Guidance says it may be appropriate to disregard a property in exactly Ms Y’s circumstances
• Ms Y gave up her home to care for Miss X
• Ms Y could become homeless if there is no equity left in the property when Miss X passes away
• Ms Y had a close relationship with her foster parents that makes her more akin to an adopted daughter
32. I have reviewed the Council’s responses and asked further questions about how it considered the matter. It is clear the Council has properly considered each of points Ms Y raises and responded to each of these.
33. I can see the close likenesses between the scenario given in the Guidance and the circumstances of this case. However, the Guidance only says it may be appropriate to apply a disregard in this case. It remains at the Council’s discretion. The Council may consider a range of factors in making its decision.
34. The Council also accepts the likeness with the scenario in the Guidance. It has set out why, despite this, it remains of the view it should not use its discretion. It has therefore properly considered the matter and it is not my place to question the merits of the Council’s decision.
35. The Council also considered that Ms Y gave up her home. I asked the Council whether it considered that this was a home for life for Ms Y. The Council said it was not aware Ms Y could have stayed on after retirement. I cannot see any evidence in the correspondence to contradict that, so I do not find any fault in the Council not considering this point. The Council went on to say it would not have changed its decision if it had known, given the other factors involved.
36. The question of whether the Council’s decision could potentially leave Ms Y homeless is a difficult one. I understand the concern Ms Y has about future difficulties in affording suitable housing on a low income. However, the Council considered this point in detail. It gives clear reasons for why it does not consider Ms Y is likely at risk of homelessness if she accepts a DPA. Ms Y can work, there is a significant amount of equity in the house, which is mortgage free, and Ms Y could mitigate any decrease in equity by paying rent to Miss X. I can see no evidence of fault in how the Council considered this point.
37. I agree it is impossible to know for certain how much equity will be left in the property. However, this does not mean there was fault in how the Council conducted the appeal. There is no information the Council could have obtained that would have given any more certainty on this point. It is entirely dependant on the level of the care fees following an assessment, how long Miss X remains in the care home and other potential changes in her care. The Council needed to make a decision based on the information available. It properly explained why it made that decision. I cannot question the merits of the decision.
38. I understand that Ms Y had a close relationship with her foster parents. However, there is nothing in the Guidance that suggests the Council should add more weight in favour of applying its discretion in such circumstances. I cannot therefore find fault with the Council for not doing so.

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Final decision

39. The Council is not at fault in how it considered whether to exercise its discretion to disregard the value of Miss X’s home.

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Parts of the complaint that I did not investigate

40. I have not investigated Ms Y’s complaint about the Council’s financial assessment of Miss X. This is because Ms Y may still challenge the decision with the Council. If Ms Y remains dissatisfied with the Council’s financial assessment, she can then raise a separate complaint with the Ombudsman.

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Investigator's decision on behalf of the Ombudsman