Summary: Mrs X complained about the Council’s decision to include a property abroad in her mother, Mrs Y’s, financial assessment. There was no fault in the Council’s decision making.

The complaint

1. Mrs X complained about the Council’s decision to include a property abroad in her mother, Mrs Y’s, financial assessment.
2. Mrs Y jointly owns a property abroad with her estranged husband. Mrs X said Mrs Y left her husband due to domestic abuse. Mrs Y’s estranged husband lives in the property they jointly own and Mrs X said Mrs Y has no way to access the property or realise its value.
3. Mrs X said the Council failed to consider exercising discretion to disregard the property from Mrs Y’s financial assessment.
4. The Council’s decision caused Mrs Y financial difficulty, as she must pay the full costs of her care and support. This has led to anxiety and distress.

Back to top

The Ombudsman’s role and powers

5. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)

Back to top

How I considered this complaint

7. As part of the investigation, I considered the complaint and the information Mrs X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Charging for social care services - the power to charge

10. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
11. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Care and support statutory guidance – treatment of capital

12. When carrying out an assessment, a council must assess the income and capital of the person.
13. The financial assessment will need to look across all of a person’s assets (capital and income), decide which is capital and which is income, and assess those assets according to the regulations and guidance. 
14. Capital can include buildings, land, cash, savings, stocks and shares, and trust funds.
15. Where capital is held abroad and all of it can be transferred to the UK, its value in the other country should be obtained and taken into account. Where capital is held jointly, it should be treated the same as if it were held jointly within the UK.
16. A capital asset is normally defined as belonging to the person in whose name it is held, the legal owner.
17. Where ownership is disputed, a council should seek written evidence to prove where the ownership lies.
18. Capital which is not immediately realisable due to notice periods, for example investment accounts, should be taken into account in the normal way at its face value.
19. Councils should disregard the value of a person’s main or only home where it is occupied by a partner, former partner, or civil partner, except where they are estranged.
20. A council may use its discretion to disregard property. However, it will need to balance this discretion with ensuring a person’s assets are not maintained at public expense.

What happened

21. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
22. Mrs Y lives alone in sheltered living accommodation which she rents from a housing association. Mrs Y is no longer employed but receives some low-income benefits.
23. Mrs Y jointly owns a home abroad with her estranged husband. This is Mrs Y’s husband’s permanent home.
24. Mrs Y left her husband several years ago due to domestic abuse and returned to the UK. According to Mrs X, Mrs Y reported the abuse to the local police when she was abroad, but they took no further action.
25. Due to her dementia, Mrs Y struggles to meet her own needs. Mrs X therefore asked the Council for help. As part of the financial assessment process, Mrs X told the Council about the home abroad.
26. The Council assessed Mrs Y had to pay the full costs of her care and support package.
27. Mrs X challenged the Council’s assessment. She said Mrs Y had no funds and her estranged husband occupied the home abroad. The Council told Mrs X to appeal and provide any new evidence she may have.
28. Mrs X appealed. She gave the Council copies of letters from Mrs Y’s solicitor.
29. The Council refused the appeal. It did not consider the solicitor’s letters contained evidence which would allow it to disregard the value of the property abroad. It said it had not seen evidence of anything preventing Mrs Y receiving half of the money if the property was sold.

My investigation

30. Mrs X told me the solicitor’s letters show Mrs Y tried to divorce her husband and arrange maintenance payments, but neither were achieved. She said Mrs Y is not well enough to pursue divorce proceedings now.
31. The Council told me it can use discretion to disregard the property if Mrs X can show Mrs Y cannot access it or release funds from it. It said Mrs X has not provided evidence of this.
32. The Council said Mrs X is Mrs Y’s lasting power of attorney (LPA) and it would be reasonable for her to seek legal advice in that capacity on how to access equity in the property.

Analysis

33. In this case, the property is abroad but its value, if sold, could be transferred to the UK. The property is not Mrs Y’s main or only home, as she is living in sheltered housing in the UK.
34. While Mrs X argues Mrs Y cannot access the property or realise its value, she is a joint legal owner. It is therefore theoretically possible through legal action, or if the property were to pass into Mrs Y’s sole ownership.
35. I have seen the solicitor’s letters. I found they do support Mrs Y’s account about domestic abuse, and her attempt to achieve a divorce settlement. However, they do not provide any evidence about either party’s financial situation, or access to and ownership of the property abroad.
36. I can appreciate why the Council is not satisfied this evidence proves Mrs Y has no way of accessing funds from the property. The Council is entitled to reach the view that Mrs X, as Mrs Y’s LPA, can seek legal advice about this.
37. Mrs X considers the Council is refusing to recognise Mrs Y’s circumstances and exercise its discretion. However, I found the Council is willing to consider exercising its discretion, but it needs more evidence in order to do so.
38. Based on the above, I have not seen evidence of fault in the Council’s decision to include the value of the foreign home in Mrs Y’s financial assessment.
39. It is not the role of the Ombudsman to substitute his own view for that of the Council. Where a council reaches a decision properly, with no fault in the process, we cannot question the merits of its decision.

Back to top

Final decision

40. I completed my investigation. I did not find fault in the Council’s decision making.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman