Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s decision on his mother’s financial assessment in relation to residential care home charges. This is because there is no sign of fault in the Council’s decision.

The complaint

1. The complainant, who I call Mr X, complains about the Council’s decision his mother is liable for her full residential care charges due to her owning a 50% share of a property.

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The Ombudsman’s role and powers

2. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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)

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How I considered this complaint

5. I considered the information Mr X provided in his complaint to this office. I also considered the complaint correspondence which I requested from the Council. I sent Mr X a draft copy of my decision and considered his comments on it.

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What I found

6. Mr X has lasting power of attorney for his mother, Ms Y. He complains about the outcome of the Council’s financial assessment in relation to Ms Y’s liability for her residential care charges.
7. 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.
8. The rules state that people who have over the upper capital limit, currently set at £23,250, 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.
9. The Council’s financial assessment found Ms Y has funds in excess of the upper £23,250 limit, due to her 50% share of a property purchased with family members. The property is valued at over £100,000. The Council offered to enter into a deferred payment agreement to cover the care charges.
10. Mr X says the family originally purchased the property as an investment for the whole family as they age and so it should not be considered when assessing Ms Y’s assets.
11. The charging rules set out certain circumstances where a mandatory property disregard will apply. Those circumstances do not apply in this case.
12. Mr X says he is being financially disadvantaged due to the fact he has lasting power of attorney for Ms Y. This is because the Council told him it would take action to recoup the fees if they remained unpaid and could raise concerns about his actions as Ms Y’s attorney with the Office of the Public Guardian (OPG).

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Final decision

13. We will not investigate this complaint. This is because I see no sign of fault in the Council’s decision. Ms Y has assets in excess of the upper limit via her share of the property. As a result, she is currently liable for the full cost of her care home fees. She does not meet the criteria, as set out in the charging rules, for a mandatory property disregard. The Council must follow the rules set out in the regulations and it has done so here.
14. Mr X is not obliged to take up the Council’s offer of the deferred payment. But if this is not agreed, the fees remain due via an alternative method.
15. I can see nothing to support Mr X’s view he has been financially disadvantaged due to his role as attorney. His role as attorney had no financial impact on the outcome of the Council’s assessment. The Council explained the action it may take if the fees remain unpaid. It also told Mr X what action it could take if it had concerns about his actions as attorney. These are separate issues. Councils will take action if fees are unpaid. Such action is not only pursued where there is an attorney in place.
16. The Council also advised Mr X to contact OPG or seek independent legal advice on managing any potential conflict of interest arising from his role as attorney and his own financial interests in the property. The Council is not at fault for informing Mr X of possible action it could take if the fees remain unpaid.

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Investigator's decision on behalf of the Ombudsman