Summary: Mrs X complained about the Council’s decision not to disregard the value of her, mother, Mrs Y’s home in the financial assessment after Mrs Y moved into a care home. The Council was not at fault. It considered relevant law, guidance and evidence from Mrs X in deciding not to disregard the value of Mrs Y’s property.

The complaint

1. Mrs X complains the Council included the value of her mother, Mrs Y’s home in the financial assessment when she moved into a care home in 2021. Mrs X says she lives in Mrs Y’s home and therefore the Council should disregard the value of the property.
2. Mrs X says she has nowhere else to live if Mrs Y’s property is sold which is causing her distress and uncertainty.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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 spoke to Mrs X and considered her view of the complaint and the information she provided.
6. I considered the Council’s response to my enquiry letter.
7. I considered the Care and Support statutory guidance.
8. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

The Care Act 2014 and charging

9. In 2014, the Government introduced the Care Act. This legislation replaced all previous guidance about how councils assess and provide care for adults in need. It includes guidance on charging for care.
10. The Care Act states councils have discretion to charge people for the care they receive. If a council decides to charge for care, it must complete a financial assessment. If a person refuses a financial assessment they must self-fund their care.
11. Councils can consider both capital and weekly income when completing financial assessments. If a person needs care to stay in their own home, the means test will not include the value of their property.
12. Persons who have over £23,250 of eligible capital will be expected to pay for the full cost of their care home fees. However, once their capital has reduced to less than £23,250, they only have to pay an assessed contribution towards their fees.

12-week disregard

13. There is a 12-week disregard for care homes fees from the day a person first becomes a permanent care home resident. This gives the resident time to decide how to use their property to pay for care fees.

Disregarded property

Mandatory disregard

14. The Care and Support Statutory Guidance says if someone enters a care home permanently, the share in their existing (main or only) home is usually considered as capital. The value is usually disregarded from the financial assessment if the person no longer occupies the home, but it is still occupied in part or whole, as their main or only home by:
• The person’s spouse, partner, former partner or civil partner
• A lone parent who is the person’s estranged or divorced partner
• The person’s relative, or member of the person’s family who is
1. Aged 60 or over, or
2. The person’s child aged under 18, or
3. Incapacitated
15. The guidance states ‘the mandatory disregard only applies where the property has been continuously occupied since before the person went into a care home’
16. The guidance further states that the meaning of ‘occupy’ is not closely defined. It says in most cases it will be obvious whether or not the property is occupied by a qualifying relative as the main or only home. However, there will be some cases where this may not be clear and the council should undertake a factual inquiry, weighing up relevant factors in order to reach a decision.

Discretionary disregard

17. The guidance says the council may use its discretion to apply the disregard in other circumstances. However, it will need to balance that discretion with ensuring the person’s assets are not maintained at public expense.

What happened

18. Mrs Y owned and lived in her own property and has dementia and other ailments. Mrs X said she moved to live with her mother in 2021 due to her deteriorating health and behaviour. During 2021 Mrs Y fell ill and spent a period of time in hospital and then in a nursing home under a Discharge to Assess agreement. Following Mrs Y’s period at the nursing home it was agreed that it was in her best interests to move into a care home on a permanent basis.
19. The Council carried out a financial assessment with Mrs Y and her daughter Mrs F, who has Power of Attorney over Mrs Y’s finances. Mrs Y’s other daughter, Mrs X who was over 60 years of age said she was living permanently with Mrs Y and would continue to do so after Mrs Y moved to a care home. Records of the financial assessment show the Council had no evidence to support Mrs X’s permanent residence at Mrs Y’s home. The Council therefore said it would consider the value of Mrs Y’s property after the first 12 weeks of Mrs Y’s move to a permanent care home. As such, she was liable for the full cost of the placement because it took her capital above the threshold. The Council explained Mrs X could consider a deferred payment agreement on the property.
20. Mrs Y moved into a permanent care home (the care home) in December 2021. The 12-week disregard period ended in early 2022. The care home contacted the Council in March 2022 and said it had received no further payment for Mrs Y’s fees. The Council said it started paying Mrs Y’s fees to avoid her placement at the care home being put in jeopardy.
21. Mrs X complained to the Council about its decision to include the property in Mrs Y’s financial assessment. Mrs X said she was living there permanently and would be homeless if the property was sold to pay for Mrs Y’s fees. Records show the Council had told Mrs X that it required evidence showing Mrs X lived there permanently and the dates would need to reflect this was the case for a year or two before Mrs Y moved into the care home. The Council outlined the evidence it required such as council tax bills, electoral role records and where Mrs X was registered with doctors and whether she owned or rented another property.
22. Records show the Council completed a further financial assessment in September 2022. Mrs F provided supporting documentation on behalf of Mrs X and asked the Council to consider disregarding Mrs Y’s property. The Council wrote to Mrs F and said it had concluded the evidence was insufficient to support Mrs X’s permanent residence at the property. The Council said it had consulted DWP which confirmed Mrs X was registered at an address outside of the Council area. It also considered that Mrs X received Severe Disability Premium which is only awarded to someone who lives alone or with someone else over 18 who receives a qualifying benefit, but not a close relative.
23. Mrs X remained unhappy and complained to us.

The Council’s response to my enquiry letter

24. The Council said it has not received evidence which shows Mrs X was residing with Mrs Y permanently prior to her moving into care. The Council said its records show Mrs X travelled to visit Mrs Y from outside its area. The Council said it requires evidence in the form of electoral role records, council tax bills and other bills which would evidence that Mrs X lived with Mrs Y permanently.
25. The Council said that as it has not received suitable evidence it will send backdated invoices to Mrs Y to for the fees paid since March 2022.

My findings

26. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with the decision the organisation made.
27. Mrs X is Mrs Y’s daughter and is over 60 years old. Therefore, she meets the criteria for the Council to consider whether to apply a mandatory disregard to Mrs Y’s property. However, the guidance states ‘the mandatory disregard only applies where the property has been continuously occupied since before the person went into a care home’.
28. The Council has considered various evidence and records in deciding whether to apply a mandatory disregard. This includes:
• DWP records.
• Mrs X’s receipt of Severe Disability Premium.
• Land registry records.
• Information provided by Mrs X and Mrs F.
29. Mrs X says she has provided copies of household bills and electoral role records however the copies I have seen are dated late 2021 which is after Mrs Y started living in a care home.
30. The Council has considered relevant guidance and law and information from both Mrs X and Mrs F in deciding not to apply a mandatory disregard or use its discretion to do so. There is no evidence of fault in the Council’s decision making, therefore I cannot criticise its decision.
31. The Council has clearly explained what information it needs from Mrs X. If Mrs X has evidence or information which she believes the Council has not considered, then it is open for her to provide it for the Council to consider the matter further.

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Final decision

32. I completed my investigation because I have found no fault.

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Investigator's decision on behalf of the Ombudsman