Summary: Mr X complains about the Council’s decision not to disregard Mrs Y’s property when assessing her ability to pay for her care. Mr X says this caused Mrs Y and Mrs W stress and worry. The Ombudsman finds no fault with the Council’s actions.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains on behalf of Mrs Z and her mother, the late Mrs Y. He says the Council failed to apply a mandatory disregard for Mrs Y’s property when assessing her financial contribution to her care.
2. Mr X says, in holding Mrs Y responsible for £10,702.53 outstanding care fees, the Council has caused Mrs Z stress and worry when her mother had died. It also caused her daughter, Mrs W, considerable trouble, worry and inconvenience.
3. Mr X asks that the Council complete a fresh financial assessment applying a mandatory disregard for the property. He also asks that the Council reimburse their legal costs of around £2,000.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

7. (Local Government Act 1974, section 26A(2), as amended)
8. In this case, Mrs Z is Mrs Y’s daughter and executor. She has her own daughter, Ms W to make this complaint on their behalf. Ms W has instructed a legal representative, Mr X, to act on her behalf. We consider Mrs Z, Ms W and Mr X, suitable people to make this complaint.
9. If you employ a professional person to help you make your complaint, such as a solicitor or surveyor, we will only ask the council or care provider to pay their fee in exceptional circumstances. This is because people do not usually need professional help to put a complaint to us.

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How I considered this complaint

10. I considered information from the Complainant and from the Council.
11. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

12. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
13. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
14. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
15. The guidance says the value of the person’s home must be disregarded when the person no longer occupies the property but it is occupied by a relative who is incapacitated. This mandatory disregard only applies where the property has been continuously occupied since before the person went into a care home.
16. The guidance also says that in most cases it will be obvious whether the property is occupied by a qualifying relative as their main or only home. However, there will be some cases where this may not be clear and the local authority should undertake a factual inquiry. It should weigh all relevant factors to reach a decision. It says it may be helpful to consider the following factors in deciding whether to apply a mandatory disregard:
• Does the relative currently occupy another property?
• If the relative has somewhere else to live do they own or rent the property (for example, how secure/permanent is it?)
• If the relative is not physically present is there evidence of a firm intention to return to or live in the property?
• Where does the relative pay council tax?
• Where is the relative registered to vote?
• Where is the relative registered with a doctor
• Are the relatives belongings located in the property?
• Is there evidence that the relative has a physical connection with the property?
17. The guidance also says a local authority can use its discretion to apply a property disregard. It must balance this discretion with ensuring a person’s assets are not maintained at public expense. For example, it may disregard a property when a qualifying relative moves into the property after the person goes into residential care. It says the local authority will need to consider all the relevant factors such as timing and purpose of the move. “The purpose of the disregard in these circumstances is to safeguard certain categories of people from the risk of homelessness”. It says local authorities may find it helpful to consider 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 relatives own health and wellbeing?

What happened

18. In 2012, Mrs W provided over £57,000 for Mrs Y to buy her house through the Right to Buy scheme, achieving a discount of over £70,000. Mrs W took a legal charge over the property for the money she had invested plus compound interest.
19. Mrs Y had health conditions which caused her difficulties with mobility, continence, cognition and daily living. She lived in the home that Mrs W had helped her purchase, on her own with a package of care. Council records also show it recognised Mrs Z provided “daily and considerable” support to Mrs Y.
20. In December 2016, Mrs Y went into residential respite care for seven weeks, while Mrs Z went overseas. Mrs Y returned home towards the end of January 2017.
21. Mr X says that Mrs Y’s grandson, Mr V, moved into the property in January 2017 because Mrs Y offered him permanent, rent free accommodation. This was because Mr V had health conditions which made him eligible for employment support allowance (ESA) and he could no longer afford his accommodation. He ended his previous accommodation on 9 January.
22. On 3 February, Mrs Z telephoned the Council and said she was no longer able to support Mrs Y. The Council’s records note Mrs Z said she locked Mrs Y in at night because she lived alone in a house with a stair lift. Mrs Z was concerned she might try and get down the stairs. On the same day Mr V notified his GP that his address was now at Mrs Y’s home.
23. On 17 February, the Council visited Mrs Y to assess her finances. The financial assessment officer saw no sign that anyone else was living in the property. The financial assessment, signed by Mrs Z during the visit, states no one was living in the property while Mrs Y was in respite care. This calculated her contribution at £178.24 weekly and did not include the property. Mr X says Mrs Z did sign the already completed form but did not notice this was wrong.
24. On 3 April, Mrs Y moved into a residential care home.
25. The Council assessed Mrs Y’s finances and decided she should pay the full cost of her care. Mr X says the Council should not have included Mrs Y’s property in the assessment because Mr V was living there and met the criteria of a qualifying relative. He says this resulted in outstanding care fees of £10,702.53 which he says Mrs Y should not have to pay.
26. The Council asked Mr V to provide evidence of his move to the property such as bills addressed to the property. Mr V provided a council tax bill addressed to him, at Mrs Y’s property, dated from 1 April 2017.
27. Sadly, Mrs Y died in December 2017.
28. Mr V continued living at the property until June 2018.
29. The Council says it considered the information provided and concluded the timing of Mr V’s move to the property would be considered as deprivation. It considered the family could have expected the property to have been included within the financial assessment. It says, having decided against a mandatory disregard, it considered a discretionary disregard using the factors listed for the mandatory disregard. It says it held three meetings to discuss the case with various officers present. It says it did not make the decision lightly and took into account the evidence and the guidance.

Was there fault which caused injustice?

30. It is not the Ombudsman’s role to decide whether the Council should apply a disregard to the property, but to decide whether the Council took the decision properly.
31. The Council considered the evidence and the guidance; this is clear in the correspondence. It considered both a mandatory disregard, and a discretionary disregard. There is no question that Mr V has the potential to meet the criteria as a qualifying resident. However, the Council has good reason to question that Mr V moved into the property in January as stated. On 3 February, Mrs Z told the Council Mrs Y lived alone and on 17 February, signed to confirm no one was living in the property while Mrs Y was in respite care. This contradictory information caused the Council to question the evidence. Although Mr V provided evidence that he had changed his address with his GP, this was undermined by the contradictory evidence. The Council tax bill notes Mr V’s liability from 1 April, two days before Mrs Y moved into residential care but does any evidence that he occupied the property. There is no council tax bill for Mr V before April.
32. I am therefore satisfied the Council has properly considered the case for a disregard and find no fault in its decision not to disregard the property.

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Final decision

33. I have completed my investigation and have not upheld Mr X’s complaint that the Council failed to apply a mandatory disregard for Mrs Y’s property when assessing her financial contribution to her care.

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Investigator's decision on behalf of the Ombudsman