Summary: Mrs Y, who is complaining on behalf of her aunt and cousin, says the Council is at fault in how it has calculated the contributions her aunt should make towards her residential care. The Ombudsman found some evidence of fault and recommended the Council act on his recommendations. It agreed and for this reason he has ended his consideration of this complaint.

The complaint

1. Mrs Y is complaining on behalf of her aunt (Ms X) and her cousin (Mr X). She says the Council is at fault for not disregarding Ms X’s home when calculating how much she must pay towards her care costs. Mrs Y also says the Council should not have decided to withdraw the ‘property disregard’ it previously applied when calculating Ms X’s contributions towards her care between May 2013 and March 2017.

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The Ombudsman’s role and powers

2. 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)
3. 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. As part of my investigation I discussed with Mrs Y the complaint and information she provided. I made enquiries of the Council and considered its response and information it provided. I set out my initial view on the complaint in a draft decision statement and I considered comments received in response.

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What I found

6. This is guidance on calculating a contribution towards care costs. It says a person’s main or only home must be disregarded if the property has been continuously occupied since before the person went into a care home by a relative who is either:

• aged 60 or over;
• is a child of the resident aged under 18; or
• is incapacitated.

This is known as the ‘property disregard’.

Deferred Payment Agreement

7. This is an arrangement with the Council to allow a person to use the value of their home to help pay their care costs. The Council will pay the person’s care costs on their behalf until they sell their home or until their death. The Council will normally ensure the money owed in care fees will be repaid by putting a legal charge on the person’s property.

Background

8. Ms X lived with her adoptive son Mr X in supported accommodation for people over 60 which she owned. Mr X has a learning disability and has received support from the Council’s Adult Social Services and Mental Health Team. Mrs Y has provided informal support for Ms X and Mr X. She also holds lasting power of attorney for Ms X’s financial affairs and is appointed guardian for Mr X.
9. In 2013 Ms X moved into residential care as was she frail and had dementia. The Council gave Mrs Y information about charging for residential care before Ms X moved. Care records also say Mrs Y would be seeking her own legal advice regarding the move.
10. The Council undertook a financial assessment to establish the contribution Ms X would need to make towards the cost of her residential care. The Council agreed that Ms X’s property would be disregarded in the assessment as Mr X was still living there. It confirmed this in a letter of May 2013.
11. Meanwhile the Council undertook an assessment of Mr X to establish his needs. This concluded he was vulnerable and would benefit from supported living accommodation. The assessment noted Mr X was finding dealing with his mother’s dementia difficult.
12. The Council decided Mr X could not remain living at his mother’s property as he was not over 60 and could not afford the service charges. For these reasons Mr X moved into assisted accommodation.
13. Mrs Y told the Council that Ms X’s property was to be sold and another property purchased that was suitable for Mr X. In November Ms X purchased a property in her name for Mr X to live in. The property was closer to where Mrs Y lives than to where Ms X and Mr X were living.
14. The Council agreed to use its discretion and applied the property disregard to the new property on condition Mr X would live there. It accepted Mr X would need to move in gradually.
15. Ms X continued to live in residential care between 2014 and 2016. The Council wrote to Mrs Y each year advising her of the charges for Ms X’s care home.
16. During this period Mr X also remained living in supported accommodation. Mrs Y was aware that Mr X would remain living in this accommodation and sought a letter from his Community Support Practitioner advocating he remain there. The letter, dated March 2015, said that his mental health would deteriorate if he moved further away from Ms X, who he visited daily. The letter explained that, owing to his learning disability, he would not be able to travel independently to visit his mother.
17. In March 2017 the Council’s finance team carried out a review of Ms X’s case and found Mr X had not moved into the property purchased by Ms X in 2013.
18. The Council wrote to Mrs Y explaining that, if Mr X was not living at the property, it could no longer be disregarded when calculating Ms X’s contributions towards her care.
19. Mrs Y challenged the Council’s view and said she had not been told that Mr X had to live in the property for it to be disregarded.
20. The Council told Mrs Y this had been explained to her and that it would now be reassessing Ms X’s care costs from June 2014 (seven months after the property was purchased) to include the value of the property she purchased for Mr X. The Council said that seven months was adequate time for Mr X to have moved into the property. For this reason, it said that Ms X owed nearly £70,000 in back fees for her care.
21. Mrs Y told the Council she would sell the property to pay Ms X’s back fees and use the remaining money to purchase another property for Mr X. The Council told her that any new property brought for Mr X would be included in Ms X’s financial assessments as it would be purchased with capital belonging to her.
22. In February 2018, the Council wrote to Mrs Y asking her to sign a Deferred Payment Agreement (DPA) for Ms X. A DPA would allow the Council to continue funding Ms X’s care until the property was sold and funds released to pay the Council back.
23. However, the Council did not receive a signed DPA and it wrote to Mrs Y saying that without one it may have to cease funding Ms X’s care.
24. Mrs Y complained to the Council about its handling of this matter. She made the following points:

• the Council knew a new property was purchased in 2013. It also knew Mr X would be moving in gradually but had not stipulated a moving in date. It also knew Mr X had been living in supported accommodation since 2013 and had been paying him housing benefit;
• she would not have purchased a property nearer to her than Ms X if she had known that Mr X would need to live in it by a certain date. She had therefore been deprived the chance to make an informed decision; and
• the Council was wrong to ask her to sign a DPA and to tell her it would stop funding Ms X’s care within five days if she did not do so.

25. The Council replied explaining the following:

• it had disregarded Ms X’s original property in line with the relevant guidance as Mr X was vulnerable. It had used its discretion to disregard the property purchased by her because Mr X was going to live there;
• it knew Mr X’s move into the property would be gradual but it had not anticipated this would be over several years. It considered Mr X was unlikely to live in the property given the length of his stay in assisted accommodation;
• it acknowledged it had not set a timescale for Mr X to move into the property however charging guidance did not provide a timescale;
• housing benefit information would not have been shared with the Finance team;
• It acknowledged it had not written to Mrs Y before 2017 seeking an update on the property;
• Ms X’s financial assessment of 2017 was done in accordance with the relevant legislation and guidance and it has provided Mrs Y with details of the assessment;
• it had acted in accordance with the Care Act 2014 when asking Mrs Y to sign a DPA for Ms X’s care costs; and
• it agreed to continue funding Ms X’s care without a signed DPA until she had sought legal advice or pursued her complaint with the Ombudsman.

26. In April Mrs Y told the Council Ms X wanted to leave her residential care and move into the property purchased for Mr X. She told the Council the property was suitable for her needs and that a trial week (where both Ms X and Mr X stayed at the property) was successful.
27. However, the Council is concerned about the arrangement. It noted that Mr X had found handling his mother’s dementia difficult in the past.
28. In August Ms X approached the Ombudsman for resolution of this matter. Ms X continues to live in residential care and Mr X to live in his supported accommodation.

Analysis

Application of the property disregard

29. The Care and Support Statutory Guidance says the property Ms X owned when she went into residential care should be disregarded for the purposes of calculating her contribution towards her care costs. This is because Mr X was a qualifying adult living at the property at the time she went into care.
30. The guidance does not say a new property can be disregarded if the one the person was living in prior to moving into residential care is sold. However, the Council exercised discretion to do this on the basis that Mr X would live in the new property.
31. Although the new property was purchased in November 2013, Mr X has not moved in. While it was agreed by all parties his move should be gradual, I consider it reasonable to expect to him to have done so by now. As Mr X is not living at the property, I do not see there are any grounds on which the Council would continue to disregard it. Therefore, I do not find it at fault for including the property in Ms X’s assets when determining her current contributions towards her care.

The Council did not explain why it applied the property disregarding

32. Mrs Y says the Council did not tell her why it had applied a property disregard. She says she thought it had done so because the property was in trust for Mr X. However, the Council has provided copies of care records and correspondence which show it told Mrs Y the property disregard was applied because Mr X needed the property to live in. The Council had also explained it would use its discretion to apply the disregard to the newly purchased property. Based on the information provided to me I consider the Council did explain the reasons for applying the disregard to Mrs Y.

Retrospectively withdrawing the property disregard

33. Mrs Y says the Council did not tell her there was a timescale for Mr X to move into the property. I agree that there is nothing saying Mr X needed to have moved in by a certain date.
34. However, Mrs Y knew Mr X must be living in the property for it to be disregarded. While, it was agreed Mr X’s move should be gradual, it could not reasonably be seen as open ended.
35. Furthermore, Mrs Y knew in 2015 that Mr X was unlikely to be moving into the property. This is demonstrated in the letter she sought from Mr X’s Community Support Practitioner stating that he should remain living in assisted accommodation.
36. The Council told Mrs Y each year the contributions Ms X needed to make towards her care costs. It told her she should tell it of any changes in Ms X’s financial circumstances. I consider the agreement Mr X should remain living in assisted accommodation was such a change. Mrs Y was aware the property could only be disregarded if Mr X was living there; this would not be the case if he was to remain in assisted accommodation.
37. The Council’s finance team was aware in November 2013 that Mr X was not yet living in the property but the Council did not check if he had moved in until March 2017. I consider the Council could have clarified this every year before it carried out a review in 2017.
38. Mrs Y also argues the Council should have realised earlier that Mr X was still living in supported accommodation. This is because it pays him housing benefit and arranged the accommodation and activities for him. However, it not usual practice for the departments involved to routinely share information of this nature. I do not consider it was unreasonable for the Council not to have noticed earlier.
39. For the above reasons, I consider both parties have some responsibility for this not being clarified earlier.
40. Mrs Y says the lack of clarification provided by the Council regarding a date by which Mr X need to live in the property meant she was unable to make an informed decision about where the property purchased for him should be. She says she would have purchased a property closer to Ms X’s residential home if she had known because it is important for Mr X to be able to visit her daily. While I accept that no date was provided, Mrs Y knew the Council would only disregard the property if Mr X lived there. I therefore consider it was open to Mrs Y to consider fully where the new property should be located to meet Mr X’s current and future needs at the time she purchased it.

Deferred Payment Agreement

41. Mrs Y says the Council should not have asked her to sign a DPA for Ms X once it had explained that it was no longer applying a property disregard. I agree it should not have done so until her complaints about this matter had concluded (including consideration by the Ombudsman) as she was disputing whether the disregard should be removed.
42. While I appreciate that this would have been distressing for Mrs Y and Ms X, no DPA was signed and the Council has continued to fund Ms X’s care. For this reason, I do not see the Council’s actions have caused either of them significant injustice.
43. Under the legislation, the Council is entitled to ask for a DPA to be signed after this matter has concluded.
44. Mrs Y says that Ms X’s care fees for the period from 2017 onwards should be waived. I do not agree. While I do not think Mrs Y should have been made to sign a DPA agreement, this is does not alter the fact that she has been aware of the Council’s position regarding future care costs for Ms X. For this reason, I consider it was open to Mrs Y to make decisions about her ongoing care in light of these.

Agreed action

45. I have identified that both the Council and Mrs Y have contributed to delay in clarifying the funding position.
46. The Council says Ms X’s property should be included in financial assessments from July 2014. While I appreciate its reasons, this does not take account of the Council’s contribution to the delay.
47. The Council considers Mr X could reasonably be expected to have moved into the property within seven months. On this basis, if Mrs Y had told the Council he would not be moving in March 2015, it would have expected him to have done so by September 2015. I therefore asked the Council to apply the disregard property up to September 2015 but include it in any later assessments. The Council agreed.
48. I understand both Mrs Y and the Council have concerns about the impact of Mr X moving from his supported accommodation. If this is proposed, I would expect the Council to fully consider if the move is in his best interests.

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Final decision

49. I have found evidence of fault by the Council in its handling of this matter. It has agreed to my recommendation which I consider addresses the injustice this caused. For this reason, I have ended my investigation of this complaint.

Investigators final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman