Summary: Mrs B complained the Council wrongly refused to award a 12 week property disregard when her mother moved into a care home and failed to properly assess her mother’s needs properly. There is no fault in the Council’s care assessment. The Council failed to follow statutory guidance when refusing to award a 12 week property disregard and failed to follow its own policy. That caused Mrs B distress. An apology, payment to Mrs B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Mrs B, complained the Council:
• unreasonably refused to award a 12 week property disregard to her mother (Mrs C) when she moved into a care home; and
• failed to take into account Mrs C’s severe and complex physical and mental health issues when completing a care assessment.
2. Mrs B says the Council’s failures caused her and Mrs C significant distress and meant she had to fund Mrs C’s care home placement herself.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The care and support statutory guidance

9. This says local authorities must consider the individual’s preferences in carrying out a care assessment. The authority should consider the person’s goals in approaching the authority for support, and the level or nature of support desired.
10. It says in deciding how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met).
11. Annex B says an important aim of the charging framework is to prevent people being forced to sell their home at a time of crisis. The regulations under the Care Act 2014 therefore create space for people to make decisions as to how to meet their contribution to the cost of their eligible care needs. A local authority must therefore disregard the value of a person’s main or only home for 12 weeks in the following circumstances:
• (a) when they first enter a care home as a permanent resident;
• (b) when a property disregard other than the 12-week property disregard unexpectedly ends because the qualifying relative has died or moved into a care home.

The Council’s eligibility and assessment criteria of the adult policy

12. This says following the completion of an assessment of the presenting needs the Council will make an eligibility decision. It says the Council must make sure all eligible needs are met and assessed needs are accounted for and recorded and this must be appropriate, proportionate and holistic.
13. If there is more than one way to meet an eligible need the Council will take that into account. It will make sure the proposed arrangements are appropriate and proportionate and able to meet the assessed needs that will deliver the outcomes for the person at best value.
14. How the Council will meet a person’s eligible needs and achieve the agreed outcomes is outlined within the care and support plan. Outcomes are decided by professional judgement and within the adult eligibility framework. The Council will work with the person to determine needs and desired outcomes and eligibility. However, the final decision regarding eligibility will be decided by the Council.

The Council’s deferred payment agreements policy

15. This notes local authorities have a duty to arrange care and support for adults with eligible needs and a power to meet non-eligible needs. In both cases the Council has discretion to choose whether to charge.
16. The Council has a duty to offer deferred payment arrangements to people who meet certain criteria. By entering into a deferred payment agreement a person can defer or delay paying the costs of their care and support until a later date. This means people can delay the need to sell their home. The criteria are:
• anyone whose needs are to be met by the provision of care in a care home. This is determined when someone is assessed as having eligible needs which the Council decides should be met through a care home placement;
• anyone who has less than (or equal to) £23,250 in assets excluding the value of their home; and
• anyone whose home is not disregarded and therefore is taken into account in the Council’s financial assessment and might need to be sold.
17. The Council will also consider offering the scheme more widely to anyone it feels would benefit but who does not fully meet the criteria.

What happened

18. Mrs C had various health conditions and had lost most of her sight following a stroke. She was living at home on her own with a package of care. Due to her anxiety about safety issues Mrs C approached the Council for a care assessment in 2024.
19. The Council carried out an assessment and decided Mrs C’s needs could be met at home with an increased package of care.
20. Mrs B made clear she and other family members could no longer provide the care they had been providing to Mrs C. The Council updated the assessment and again decided it could meet Mrs C’s care needs with an increased package of care at home which involved:
• an extra carer visit (4 in total per day to support with personal care, household chores, laundry, food shopping and night time routines);
• an extra one hour visit per week to support with food shopping;
• support for her finances;
• befriending services or day centres to encourage social interaction;
• technology enabled care (TEC) installed in the home (bed occupancy sensor/wall sensors to alert for falls);
• referral to the sight and hearing team for guidance on further adaptations in the home to support visual impairment;
• discussions with Careline about response strategies.
21. On 28 May the peer forum discussed the case and agreed Mrs C’s needs could be met at home with the proposed amendments to her package. By that time though the family had arranged for Mrs C to move into residential care. Mrs B paid for that.
22. Mrs C has since sadly died.

Analysis

23. Mrs B says the Council unreasonably refused to award Mrs C a 12 week property disregard to enable her to move into a care home permanently pending the sale of her property. The Council says it did not award the 12 week property disregard because it had not assessed Mrs C as needing a care home placement. That is because the Council considered Mrs C’s needs could be met at home with an increased package of care. I will come onto how the Council carried out the care assessment later in this statement.
24. For the 12 week property disregard, I set out in paragraph 11 what the care and support statutory guidance says about the 12 week property disregard. The care and support statutory guidance does not say the 12 week property disregard can only be awarded where a council has assessed a person as needing a care home placement. Instead, the care and support statutory guidance says the 12 week property disregard applies when a person has moved into a care home permanently. As Mrs C had moved into the care home when she applied for the 12 week property disregard I am satisfied she qualified for it under the care and support statutory guidance. The Ombudsman would expect the Council to follow the care and support statutory guidance unless it has good reason not to. Failure to award the 12 week property disregard is therefore a breach of the statutory guidance and is fault.
25. In reaching that view I recognise the Council’s deferred payment agreements policy, which is the arrangement put in place after the 12 week property disregard has expired, requires the Council to have assessed the person receiving care as needing a care home placement to qualify. That does not reflect what the statutory guidance says. However, the Council’s policy also makes clear it has discretion to consider putting in place a deferred payment agreement even where the person does not satisfy one of the three conditions. I have seen no evidence the Council considered whether to exercise its discretion in this case. That is fault.
26. I have taken into account the fact the statutory guidance does not require an adult needing care to have been assessed by the Council as needing a care home placement to qualify for the 12 week property disregard. I have also taken into account the fact the Council’s policy allows it to exercise its discretion when considering deferred payment agreements. I therefore consider it likely, on the balance of probability, if the Council had properly considered the guidance and its discretionary powers it would have awarded a 12 week property disregard. Failure to do that is therefore fault.
27. I cannot now remedy any injustice to Mrs C as she has sadly died. However, I consider Mrs B has suffered an injustice as she had to cover the costs of Mrs C staying in the care home while she tried to sell her property. It is also clear Mrs B experienced distress. To remedy that I recommended the Council apologise to Mrs B and pay her £300 to reflect her distress. I also recommended the Council pay Mrs B the amount she paid in care home fees for Mrs C for the 12 week disregard period, less any amount Mrs C would have had to pay as part of any financial assessment. That is to reflect the fact the Council cannot recover the 12 week property disregard amount. I also recommended the Council remind officers dealing with deferred payment agreements and the 12 week property disregard of what the statutory guidance says. That reminder should include the Council’s discretionary powers to make a deferred payment agreement even where the conditions in its own policy are not satisfied. The Council has agreed to my recommendations.
28. Mrs B says the Council failed to properly assess Mrs C’s care needs. Mrs B says because Mrs C was blind she did not feel safe at home and was putting herself at risk by not moving about the property or drinking fluids. Mrs B therefore says the Council was wrong to assess her as being suitable for care at home.
29. As I said in paragraph 4, it is not the Ombudsman’s role to comment on the merits of a decision reached without fault. I am satisfied the assessment the Council completed set out the concerns Mrs C had about remaining safe in her own home. I am also satisfied the assessment set out how the Council believed those risks could be managed with extra support. I appreciate Mrs B strongly disagrees with the assessment the Council completed. However, as the Council considered Mrs C’s concerns about her safety and the impact on her mental health before deciding care at home was appropriate, and as that was also agreed by the peer forum, I have no grounds on which I could criticise it.

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Action

30. Within three months of my decision the Council should:
• apologise to Mrs B for the distress she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B the amount she paid in care home fees for Mrs C for the 12 week property disregard period, less any amount Mrs C would have had to pay as part of any financial assessment;
• pay Mrs B an additional £300; and
• send a reminder to officers dealing with deferred payment agreements and the 12 week property disregard about what the statutory guidance says. That reminder should include the Council’s discretionary powers to make a deferred payment agreement even where the conditions in its own policy are not satisfied.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman