Summary: The complainant says the Council failed to properly consider his residence in his late mother’s home when it agreed to a deferred payment and placed a charge on the property. The Council later reviewed the decision and removed the charge but only after the complainant had incurred legal costs. The Council says it acted on the information presented by the property owner’s family. The Ombudsman finds the Council acted with fault causing injustice.

The complaint

1. Mrs X complains on behalf of Mr Y who acted as his late mother’s carer. Mrs X says that when assessing the late Mrs Y’s care needs and financial contribution to the services she needed the Council failed to:
• Properly consider Mr Y’s residence at the late Mrs Y’s home as his only home and the night-time care he provided, resulting in the Council registering a charge against the property;
• Properly consider and assess Mr Y’s needs as a carer and disabled adult;
• Apply mandatory disregards when assessing Mrs Y’s financial contribution to her care charges;
• Respond to Mr Y’s complaint without delay taking from 2017 until 2019 to resolve the issue of his residence and status as a qualifying relative.

2. Mrs X says this led Mr Y to experience distress and to take legal advice when faced with the threat of eviction resulting from the Council’s charge on the property. Mr Y recognises the Council has removed the charge. However, he wishes the Council to accept its failures and ensure this does not happen again. Mr Y wants the Council to offer a remedy recognising the impact on him and refunding the legal fees he incurred

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. If 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

6. In considering this complaint I have:
• Spoken to Mrs X and read the information presented with the complaint;
• Put enquiries to the Council and reviewed its response;
• Researched the relevant law, guidance, and policy;
• Shared with Mrs X and the Council my draft decision and reflected on the comments received before issuing this final decision.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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What I found

The law

8. When someone moves into care and so no longer occupies their former home, the Council must consider whether they should contribute to the costs of their care. This includes deciding if the Council should consider the value of their legal interest in their home when assessing the contribution, they should make. In certain circumstances the Council must apply a ‘mandatory disregard’. This excludes the value of the home or a person’s interest in the home from their income and available assets considered in the financial assessment of what they may pay towards their care. The Council may also exercise its discretion and disregard the value of the home where someone who previously acted as carer for the owner remains in the home.
9. Councils may agree a Deferred Payment arrangement where the Council places a charge on the house owned by the person receiving care. The Council then claims payment for the deferred costs when the owners sell the house.

What happened

10. Mrs Y owned her own home and before moving into a care home she lived with her son, Mr Y, a disabled man who acted as her carer. The Council provided funding by direct payments to Mrs Y so she could pay for care in her home.
11. The Council says it knew Mr Y provided support for Mrs Y. The Council knew that although Mr Y worked full time, he had a serious permanent condition that causes periods of disability. Mrs Y’s other son, Mr Z, dealt with the late Mrs Y’s finances informally until granted a Lasting Power of Attorney.
12. In 2012 Mrs Y entered hospital. In August 2012, the Council told Mrs Y she would need to self-fund her residential care when she moved from hospital to a care home. On 21 August 2012 Mrs Y moved to a care home. The Council applied the usual 12-week property disregard while awaiting the return of the financial assessment form to complete its assessment of what Mrs Y should pay.
13. Mrs Y entered hospital again in September 2012 and then moved to a nursing home. The Council again asked the family to complete its financial assessment forms. The Council sent its ‘Paying for Care’ leaflet to Mr Z setting out what charges Mrs Y may face and how the Council may treat any property Mrs Y owned in its financial assessment.
14. The financial assessment form sent to the Council by the family in December 2012 did not refer to Mr Y living in Mrs Y’s home. The form had a section for noting if anyone lived in the property with the applicant, but Mr Y’s name did not appear.
15. The Council says it did not know that Mr Y continued living at the property and so relied on the form presented to it. The Council understood Mr Y had taken a tenancy elsewhere for a while.
16. In January 2013 on completion of the financial assessment the Council told Mr Z how much Mrs Y should contribute to the costs of her care. The family took legal advice and their solicitors told the Council they would complete a Deferred Payment Form once they had completed their investigation into the ownership of Mrs Y’s home.
17. In August 2013, the Council received an application for the deferred payment scheme. The application form did not show anyone living at the property. Although aware in 2012 that Mr Y lived at the property the Council says enquiries made in August 2012 did not show Mr Y as disabled or that he received any benefits. Mr Z, who held the power of attorney for Mrs Y did not include Mr Y on the form as living at the house. Therefore, the Council decided it should not disregard the value of Mrs Y’s home from the financial assessment.
18. The Council placed a legal charge on Mrs Y’s home so it would recover some of the costs of her care when sold. Mr Y continued to live in the house as his only home without any objections from his family. Mr Y did not know of the charge on his home.

Events from 2017

19. Mrs Y died in February 2017. Mrs Y’s death meant her estate must now pay for the deferred costs of her care. The legal charge on Mrs Y’s house meant the estate must sell the house to pay the costs. Mr Y feared that would result in his eviction from his only home. Mr Y took legal advice.
20. In September 2017 Mr Y’s solicitors contacted the Council challenging the agreement for the deferred payment that led to the legal charge. Mr Y’s solicitors set out the legal basis for their claim and referred to government guidance. The solicitors said Mr Y had lived at the property since childhood. The solicitors argued Mr Y qualified as an ‘incapacitated’ person and so could claim one of the mandatory disregards. If not, then the solicitors argued he fell within a discretionary disregard because he had acted as Mrs Y’s carer and remained in the home after she moved into a nursing home.
21. In November 2017 Mr Y’s solicitors provided reports dated 1979, 1981 and 1984 to show Mr Y’s incapacity. In the Council’s view these reports did not contain enough details to show Mr Y had an impairment. The Council said the reports did not show a disability that had a long-term impact on Mr Y’s ability to carry out normal day to day activities. Now 28 years old the Council considered the reports inconclusive.
22. Mr Y’s solicitor did not respond to the Council’s letters asking for more recent medical information. Mr Y says he could not afford to continue to engage them.
23. In April 2018 Mrs X complained to the Council on Mr Y’s behalf. The Council replied in May 2018 saying it needed evidence to support the claim Mr Y’s medical conditions entitled him to claim either a mandatory disregard or a discretionary disregard of the property.
24. By December 2018 Mrs Y’s care costs remained unpaid and a large debt had accrued. Mrs X then provided further information to support Mr Y’s claim to incapacity. The information dated from 2009, 2012 and 2013 and therefore represented much more recent information than the reports provided in 2017.
25. The Council says if it had received this information in 2012 or 2013 then it is likely it would have applied a mandatory disregard. If it had then it would not have placed a legal charge on Mrs Y’s home.
26. Had Mr Y’s solicitors presented this information in November 2017, the Council says it could have reviewed its decision on the disregard then and the matter settled.
27. The Council reviewed the financial assessment and earlier deferred payment agreement. On 11 February 2019, the Council decided to disregard Mrs Y’s property from the financial assessment. As a result, the Council removed its legal charge on Mrs Y’s home.

Care Act and Equality Act duties

28. Mrs X says the Council knew of Mr Y’s disability. In her view the Council should have considered this more carefully in 2013, and again when drawn to its attention in 2017. Instead, Mrs X says, despite knowing of Mr Y’s condition the Council relied on the information presented by the family acting under lasting powers of attorney. To prevent his eviction from his home when sold under the deferred payment agreement, Mrs X says Mr Y had no choice but to engage solicitors to gain advice. Mrs X believes that expense resulted from the Council’s failure to properly investigate whether anyone lived in Mrs Y’s former home in 2012 and 2013.
29. Further, Mrs X says the Council failed to consider properly Mr Y’s role as carer. Mrs X says the Council did not assess Mr Y as a carer to see if he had any need for support as an individual with disabilities. Therefore, Mrs X says the Council acted in breach of its statutory duties.
30. The Council says it did not have information on which it could make a sound decision on a property disregard until December 2018. The Council says it reasonably relied on the information provided by the family in 2013 who acted with Mrs Y’s authority. However, the Council says in learning from this complaint its financial assessment form now contains a much more prominent section asking applicants to say who lives in the property under consideration for a disregard.

Analysis - has there been fault leading to injustice?

31. My role is to consider if the Council decided the property disregard application without fault. If I find the Council acted with fault causing an injustice, I must consider what it should do to put that right.
32. The Ombudsman has issued Guidance on Remedies in which he recommends that where we offer a payment in recognition of avoidable distress and inconvenience, we should offer a payment in the range of £100 to £300. Where someone incurs legal costs and the need for advice arose partly from the fault identified we may recommend a contribution to those costs.

Late complaint

33. This complaint falls outside the usual twelve-month rule. However, Mr Y did not know of the deferred payment agreement and charge placed on his home in 2013. Mr Y first became aware of the issue in 2017 and made a complaint to the Council later. The courts have ruled the Ombudsman has discretion to look back further than twelve months. Mr Y’s complaint falls within this discretion and therefore I find the twelve-month rule does not apply to this complaint.
34. The passage of time, however, means I must exercise caution when considering information from records and recollections of events in 2012 and 2013.

Mr Y’s needs as a carer and disabled man

35. The Care Act 2014 came into force after Mrs Y entered the nursing home. Mr Y’s role of carer ended when Mrs Y moved permanently into the nursing home. Therefore, I find the duty imposed by the Care Act 2014 to assess him as a carer did not arise in 2013.
36. Under the law, guidance, and policy in place in 2012 Mr Y may have been eligible for assessment as a carer. However, it is now too long ago to investigate with what needs Mr X may have presented in 2013 or what services the Council may have offered him. Therefore, I find I cannot make a sound judgement based on recollections and incomplete records from so long ago.
37. However, the Council accepted Mr Y’s disability entitled him to a property disregard. That suggests a medical condition so severe it may mean the sufferer has needs which Council services could meet. On accepting the evidence of incapacity in 2018, I would expect the Council to consider assessing Mr Y, to discover if he has any unmet needs and a right to council services. I have not seen evidence the Council considered this. I find that a fault given the Council recognises it knew of his caring role in 2012. We shall never know whether Mr Y would have received support services had the Council properly assessed him. That causes frustration to Mr Y and therefore an injustice.

Mrs Y’s financial assessment and property disregard

38. The Council accepts it knew of Mr Y’s caring role and that he lived in Mrs Y’s home in 2012. That should have prompted some further enquiries on receiving the application for a property disregard in 2013. I find the Council at fault in not making further enquiries of the applicant for the deferred payment agreement.
39. I must balance this view with the Council’s reasonable expectation that an application signed by the person with lasting power of attorney would contain all necessary information.
40. Similarly, I must also consider the lawyers acting for Mr Y in 2017 did not present the Council with the more recent information Mrs X presented in 2018. The Council asked for further information in 2017, but Mr Y and his solicitors did not provide any further information in response. That added to the delay.
41. Mrs X says Mr Y incurred legal expenses defending his right to remain in his home. Mrs X argues these costs stem directly from the Council’s failure to recognise it should disregard the property when assessing Mrs Y’s finances.
42. Once Mrs Y died, the house or her legal interest in it, became part of her estate managed by her executors. The Council’s decision to disregard the property ended its involvement. Any decision to sell the house is a matter for Mrs Y’s estate and its executors. This being Mr Y’s home it is likely Mr Y would have incurred legal costs defending his right to remain in the home or defend his interest in it. Therefore, I cannot make the causal link between the Council’s fault and all the legal costs he incurred. However, Mr Y did incur costs in challenging the Council’s original assessment of his role as carer and as someone eligible for a mandatory disregard. The Council should contribute to those costs because its failings led to Mr Y reasonably seeking legal advice to help him understand the complex rules on mandatory and discretionary disregards.
43. The Council put Mr Y to avoidable distress and inconvenience in 2017 when he discovered the existence of the Deferred Payment Agreement.

Recommended and agreed action

44. To address the injustice arising from the faults identified in this investigation I recommend, and Council agrees to within four weeks of this my final decision:
• Apologise in writing to Mr Y;
• Pay Mr Y £300 in recognition of the avoidable inconvenience and distress caused by the failings identified;
• Pay Mr Y £200 for the lack of a carer's or disabled person’s assessment and never knowing if but for that fault the Council would have provided services or advice;
• Pay Mr Y £1,000 as a contribution to his legal costs incurred in 2017.

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Final decision

45. In completing my investigation, I find the Council acted with fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman