Summary: There was no evidence of fault in the way the Council assessed Mr C’s capital and included a flat he bought with his daughter as a capital asset.

The complaint

1. Ms B complains on behalf of her father, Mr C. She says the Council has not properly considered giving Mr C a property disregard when it carried out a financial assessment.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have discussed the complaint with Ms B and I have considered the documents she and the Council have sent and the relevant law, guidance and policies.

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What I found

Law, guidance and policies

5. The Care Act 2014, the Care and Support Statutory Guidance (CASS) 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.

Capital threshold

6. The Act says that, if a person needs residential care, the Council will assess their capital and income. The upper capital limit is currently set at £23,250 and the lower limit at £14,250. A person with assets above the upper capital limit will have to pay for their own care. Those with capital between the upper and the lower limit will make a contribution known as ‘tariff income’.

Property disregard

7. There is a lot of guidance on what the Council will include and what it will disregard in the calculation of the capital.
8. CASS says the value of a person’s main or only home must be disregarded where the person no longer occupies the property but it is occupied in part or whole as their main or only home by any of the people listed below:
• The person’s partner, former partner or civil partner, except where they are estranged;
• a lone parent who is the person’s estranged or divorced partner;
• A relative of the person or member of the person’s family who is either:
1. aged 60 or over
2. is a child of the resident aged under 18
3. is incapacitated
9. The definition of a relative includes grandchildren.
10. CASS says a council may also use its discretion to apply a property disregard in other circumstances. But it would need to balance this discretion with ensuring a person’s assets are not maintained at public expense.
11. CASS does not say how councils must exercise the discretion but lists factors that may be helpful to consider. These include the factors listed above plus the following additional factors:
• Was the relative occupying another property as their main or only home at the time of the previous financial assessment?
• Could the relative have reasonably expected to have the property taken into account at the time they moved into the property?
• Would failure to disregard the property result in the eligible relative becoming homeless?
• Would failure to disregard the property negatively impact on the eligible relative’s own health and wellbeing?

Deferred payment agreement

12. A deferred payment agreements (DPA) is meant to ensure a person is not forced to sell their home in their lifetime if they need to pay for residential care. By entering into a DPA, they delay paying the care costs until a later date, by having a legal charge placed on their property.
13. Councils are required to offer deferred payment agreements to people who meet certain criteria, but have discretion to offer the agreement in other circumstances.

Lack of capacity

14. Where a person lacks the mental capacity to request a deferred payment agreement, a deputy or attorney (a person with a lasting power of attorney) may request a deferred payment on their behalf.
15. If a family member requests a deferred payment and they do not have the legal power to act on behalf of the person, then the person and the family member should receive information and advice on how to obtain this, through lasting power of attorney and deputyships.

What happened

16. Mr C sold the house he used to own and live in and in February 2015, he moved into supported rented accommodation.
17. In July 2016 Mr C used some of the proceeds of the sale of his house to buy a flat. Ms B’s daughter moved into the flat and continues to live there. Ms B says her daughter has mental health problems.
18. Mr C moved into a care home in November 2018 as he has dementia. He self-funded his care. His savings rang out in April 2019 and Ms B asked the Council for financial assistance in paying the care home fees. The Council carried out a financial assessment of Mr C and included Mr C’s 50% share in the flat as a capital asset. This meant that Mr C was over the capital threshold of £23,250 to be eligible for Council funded care.
19. The Council offered Mr C a deferred payment agreement to assist him.
20. Ms B wrote to the Council on 8 September 2019 as she disagreed with the Council’s decision. She quoted guidance which the Department of Health had provided. This explained the rules of disregarding property when a person moved into a care home and said: ‘Subject to certain conditions, from April 2015 a property must be disregarded where it is occupied as their main or only home by one of the following’: ‘A relative or family member who is incapacitated’.
21. Ms B said her daughter was an incapacitated person as she had a long-term disability, the property was her main and only home and she had lived there since before Mr C moved to a care home. Therefore, the flat should be disregarded as capital in the calculation of Mr C’s assets.
22. The Council replied and referred to CASS and explained that, as the flat was never Mr C’s main or only home, the property did not meet the basic condition for a mandatory disregard. The Council said it had offered Mr C a deferred payment agreement.
23. Ms B wrote a further letter to the Council on 30 September 2019. She said the Council had not answered her complaint that the guidance of the Department of Health was different and did not mention the requirement that the resident of the care home had to live in the property as a ‘main or only’ home before the move.
24. She also quoted the discretionary disregard considerations such as allowing a property disregard if this prevented vulnerable people from being homeless. She said the uncertainty had impacted on her and her daughter’s mental health.
25. She said Mr C could not sign the deferred payment agreement because he lacked the mental capacity to do so because of his dementia.
26. The Council replied and said the guidance that Ms B had quoted from was from June 2014 and the case that the guidance referred to was appealed in December 2014. It said the Council made its decisions using CASS and quoted the relevant CASS guidance. The Council said it had considered her letter as an application for discretionary disregard. The request had been considered by the Council’s director and a decision had been made not to grant the disregard.

Analysis

27. I have investigated whether there was any fault in the way the Council considered the matter and I have not found evidence of fault.
28. Ms B’s main reason for asking for the disregard is that she says that the fact that the property was never Mr C’s ‘main or only’ home should not stop the Council from applying the disregard and she refers to the Department of Health Guidance in this respect.
29. The Department of Health guidance considered a court case which relates to the old regulations. In the DOH guidance, the writer then refers to the introduction of the Care Act 2014 which is imminent. The guidance says that ‘subject to certain conditions’ a property has to be disregarded. The guidance does not list all of the conditions, but one of those conditions is clearly set out in CASS and is that the property must have been the care home resident’s ‘main and only home’ before a qualifying relative moves in. If that condition is not met, then the duty of a mandatory disregard does not apply.
30. I therefore do not found fault in the way the Council considered this issue. The Council has applied the correct regulations, guidance (CASS) and its own policies.
31. Ms B’s also asks for a discretionary disregard as she says her daughter’s mental health is affected by the uncertainty. The Council has considered Ms B’s letter as an application and has applied the relevant law and guidance, but has decided not to grant a discretionary disregard. As there is no fault in the way the Council made this decision and as this is a discretionary matter, the Ombudsman cannot question the merit of the decision.
32. I note that Ms B has raised the issue of Mr C’s mental capacity in her complaint. The Council has not responded to this aspect and it would have been good practice to give Ms B the information on Lasting Powers of Attorney and Deputyship.
33. I note the Council has offered Mr C a deferred payment agreement. The Council had no duty to do so, as one of the conditions for a deferred payment agreement is that the property subject to the charge was the person’s home. However, the Council has used its discretion to offer the agreement. As this is a better remedy than the Ombudsman could offer, I propose to close the investigation.

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Final decision

34. I have completed my investigation and have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman