Summary: Mr and Mrs C complained about the way in which the Council dealt with Mr X’s financial assessment for temporary and permanent residential care, and in particular with the issue of discretionary property disregards. The Ombudsman found fault with the way the Council communicated, the delay in completing a financial assessment and the manner in which it considered the discretionary property disregard. The Council has agreed to apologise, remind its staff of the importance of timely and comprehensive information and revise its discretionary disregard report form.

The complaint

1. The complainant, whom I shall call Mrs C, made a complaint to us on behalf of herself, her husband and her father, whom I shall call Mr X. Mrs C bought a property with her husband and her father. Mrs C complains the Council should have applied a discretionary property disregard with regards to her father’s one third share of their property.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint or others. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
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. I considered the information I received from Mrs C and the Council. I shared a copy of my draft decision statement with Mrs C and the Council and considered any comments I received, before I made my final decision.

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What I found

What should have happened

6. The Care and Support Statutory Guidance says that when a council has chosen to charge a person for the services it is arranging, it must undertake a financial assessment. It also says that:
• The current market value of a capital asset will be the price a willing buyer would pay to a willing seller. The way the market value is obtained will depend on the type of asset held. If the person and the assessing officer both agree that the total value of the person’s capital is more than the upper capital limit of £23,250, it will not be necessary for a council to obtain a precise valuation. However, if there are any disputes, a precise valuation should be obtained. Where a precise valuation is required, a professional valuer should be asked to provide a current market valuation.
• Where the value of a property is disputed, the aim should be to resolve this as quickly as possible. Councils should try to obtain an independent valuation of the person’s beneficial share of the property within the 12-week disregard period where a person is in a care home. This will enable councils to work out what charges a person should pay and enable the person, or their representative, to consider whether to seek a deferred payment agreement.
• If the financial assessment shows that a person’s capital is above £23,250, the person must pay all the care home fees.
7. The Care and Support Statutory Guidance (Annex B) also says that:
• If the person owns (part of) a home, the Council must disregard the value of the person’s main home where the person no longer occupies the property but it is occupied in part or whole as their main or only home by any of the people listed below, the mandatory disregard only applies where the property has been continuously occupied since before the person went into a care home (for discretionary disregards see below):
1. the persons partner, former partner or civil partner, except where they are estranged
2. a lone parent who is the person’s estranged or divorced partner;
3. a relative as defined in paragraph 35 of the person or member of the person’s family who is either: aged 60 or over, is a child of the resident aged under 18, is incapacitated
• A council may also use its discretion to apply a property disregard in other circumstances. However, the council will need to balance this discretion with ensuring a person’s assets are not maintained at public expense. An example where it may be appropriate to apply the disregard is where it is the sole residence of someone who has given up their own home in order to care for the person who is now in a care home or is perhaps the elderly companion of the person.
• The guidance mentions a specific example of council discretion to apply a property disregard. It says: “Jayne has the early signs of dementia but wishes to continue living in her own home. She is not assessed as having eligible needs, but would benefit from some occasional support. Her best friend Penny gives up her own home to move in with Jayne. At this point, there is no suggestion that Jayne may need care in a care home. After 5 years Jayne’s dementia has reached the point where she needs a far greater level of care and support and following an assessment it is agreed her needs would best be met in a care home. On moving into the care home, the local authority uses its discretion to apply the property disregard as this has now become Penny’s main or only home”.
• The purpose of the disregard in these circumstances is to safeguard certain categories of people from the risk of homelessness.
• Councils need to ensure that people are not needlessly maintained at public expense. A council will need to take account of the individual circumstances of each case; however, it may be helpful to consider the factors listed above for the mandatory disregard plus the following additional factors in making a decision:
1. was the relative occupying another property as their main or only home at the time of the previous financial assessment?
2. could the relative have reasonably expected to have the property taken into account at the time they moved into the property?
3. would failure to disregard the property result in the eligible relative becoming homeless?
4. would failure to disregard the property negatively impact on the eligible relative’s own health and wellbeing?
8. The Care and Support Act Guidance also says that:
• Financial information and advice are fundamental to enable people to make well-informed choices about how they pay for their care. It is integral to a person’s consideration of how best to meet care and support needs, immediately or in the future.
• A council should be clear and transparent, so people know what they will be charged. The Council should provide enough information and advice, at the right time, to ensure that a client is able to understand any contributions they may, or will be, asked to make so they can make an informed decision.
• A council should normally complete a financial assessment once it has decided a person’s needs are eligible for council support or involvement, and before creating a personal budget and care and support plan.

What happened

9. Mrs C and her husband owned a property in 2002, when they decided to sell their house and buy a house together with Mr X. This meant that three people had a share in the property. They told the Council that they made the decision to sell their house and leave their hometown, friends and social networks, because Mr X was struggling with living on his own following the death of his wife. He was unable to cook or clean, had little companionship and was becoming withdrawn. They said there was no suggestion at this time that he may need care in a care home.
10. Mr X was diagnosed with dementia in 2016. As Mr X’s condition deteriorated, Mr and Mrs C needed some support for Mr X to enable them to cope. As such, the Council carried out a financial assessment in July 2018 to see if Mr X would have to contribute towards his homecare support. The assessment concluded that Mr X would be self-funding, because he had savings above the £23,250 threshold.
11. Mrs C called the Council in November 2018 to say that they were no longer able to cope with her father. As such, Mr X had to move into a care home on 9 November 2018. The purpose of the stay was temporary emergency respite care, with a view of staying permanently. It meant that, as long as Mr X’s stay in the care home would be temporary, the Council would not include the value of the share of his property as part of his capital for his financial assessment.
12. Mrs C told me the Council did not explain anything to them as to how his respite care would be paid for. The Council’s records confirm this, as there is no evidence the Council explained this to them. The Council should have explained to Mr and Mrs C how the temporary residential care would be paid for.
13. The Council wrote to Mr and Mrs C on 22 November 2018 and asked for further information to determine when Mr X’s capital would reduce to £23,250. However, it still did not provide sufficient clarity how Mr X’s temporary residential care would be paid for. Nevertheless, they received a first bill from the care home in December 2018. Mr and Mrs C explained to me that this uncertainty was very distressing.
14. Mrs C told the Council on 5 December 2018, that she wanted her father to remain in the care home permanently. In response, the Council said it would extend his respite care until it could carry out a care review with Mr X to determine his ongoing needs. The review took place on 11 February 2019 (12 weeks after he went into care).
15. As of 29 January 2019, the Council had still not completed Mr X’s financial assessment to determine what contribution he would have to pay towards his current temporary stay in the care home. It asked Mr and Mrs C on this day for additional information; information it had not asked before. This ongoing uncertainty resulted in continued distress for Mr and Mrs C.
16. However, the Council did not explain that, if Mr X would stay in the home permanently, he would not meet the criteria for a “mandatory property disregard”. As such, the Council would include the value of his share of the property in his financial assessment. This would mean his capital would become significantly more than £23,250, which meant he would have to pay for the entire cost of his permanent residential care.
17. The Council also said that, in some circumstances, it could consider if it should apply a “discretionary disregard” of a property. It said that Mr and Mrs C should contact the Council if they wanted the Council to consider this.
18. Following a care review, the Council concluded on 11 February 2019 that Mr X would need to stay in a care home permanently. This meant that, unless the Council would agree to apply a “discretionary property disregard”, Mr X would have to pay for the full cost of his care going forward (£900/week).
19. It took until 1 March 2019, before the Council told Mr and Mrs C what documents it wanted with regards to the discretionary property disregard. During this time, the Council did not contact or provide any updates to Mr and Mrs C. Mr C complained about this to the Council on 5 March 2019, saying Mr X’s funds were running out and they had not received any decision about funding. He said he was very distressed about the invoices they were receiving from the care home because he was under the impression that the Council would pay for his respite care.
20. It took until 5 March 2019 before the Council completed its “capital depletion assessment” that showed Mr C’s capital had reduced to £23,250 by 22 November 2018. This meant the Council would contribute towards the cost of his temporary respite care stay at the home from that date onwards. Later that same day, the Council contacted the care home. Based on the records, it only then became clear to the Council that Mr X had been staying in one of the more expensive rooms, with fees above what the Council would usually pay.
21. After Mr and Mrs C provided the documents the Council wanted, the Council officers completed a report for one of its managers, and submitted this on 21 March 2019. The purpose of the report was to provide the manager with the information needed to make a decision if Mr X’s property meets the criteria for a discretionary disregard. I have reviewed the template / report the Council used, and found that: although it contains relevant information about what the Council should consider, it did not include a key question that needs to be considered: namely: did Mr and Mrs C move in with Mr X (and sold their own house) for the purpose of providing care. As such, there is no evidence to conclude this important issue was included by the manager at this specific time, which is fault.
22. The Council’s records state that Mrs C told the Council on 25 March 2019 that the market value of the entire property would be between £400,000 - £450,000. Mrs C agreed that Mr X’s one third share would be worth more than £23,250. The Council told me it was not required to obtain an exact market value of Mr X’s share of the property, because the family agreed the value of his share was in excess of £23,250. It is only at the point where a person disagrees with a value of a share of a property that a formal valuation is required.
23. Mr X’s savings were now well under £23,250. Mrs C also wanted it noted that they sold their property to care and support for her father.
24. It took until 25 March 2019 (almost five months) before the Council first told Mr and Mrs C that Mr X would have to pay £345.42 per week (instead of £900 a week), between 22 November 2018 and 12 February 2019, when his placement became permanent. The Council would pay for the rest (the difference between that and the £900 cost a week).
25. Due to the above delays, the care home was also not clear who would pay for Mr X’s temporary placement. As such, the care home wrote to Mr and Mrs C on 5 April 2019, saying Mr X was liable for the full £900 per week between 9 November 2018 and 10 February 2019. Furthermore, the care home said the Council had not paid any money yet, which meant that Mr X was £9,600 in arrears. The letter indicated this needs to be addressed soon as otherwise the placement would be at risk. The letter was very distressing for Mr and Mrs C.
26. Mr C chased the Council on 29 April 2019 for a decision about the property disregard, but the Council told him this was still being considered.
27. The Council told Mr and Mrs C in a letter dated 14 May 2019, that it would not apply a discretionary property disregard. The Council said it considered: the care Mr and Mrs C provided and their ability to rehouse themselves (if they were at risk of homelessness). However, it said it would apply the usual 12 weeks property disregard, which would mean that Mr X would only have to start paying the full cost of his care after 2 May 2019. Mr and Mrs C responded by saying they would appeal the Council’s decision.
28. The Council updated the care home on 23 May 2019. The care home said that if the Council would stop funding the placement on 2 May 2019, the home would have to give notice to Mr X, because he and his family were struggling to pay any further bills. Following this, the Council asked Mrs C by email to explain why Mr X did not have any funds left, as he still had £23,250 in 22 November 2019 and has only been asked to pay a contribution since then from his income (pension). The Council also asked why Mr X was not paying his assessed contribution.
29. Mr and Mrs C were unhappy and appealed the Council’s decision about property disregards in June 2019. They:
• Said the Council had not considered the initial reason why they decided to sell their own property and share a property with Mr X (see paragraph 9).
• Described the support they had provided to Mr X since then.
• Explained the impact this would have on them. They said they were no longer in full time work or in a position to support themselves. Mrs C had been on sick leave and was only recently trying to return to work. Mr C suffered from a heart condition and had suffered from depression in the past.
• To date Mr X has paid £19,745.39 towards his care. Mr and Mrs C have not heard of any contribution made by the Council so far.
30. The Council said, in its appeal response on 10 July 2019, that:
• It has offered a Deferred Payment Agreement (DPA) to Mr and Mrs C. A DPA enables the person to delay paying for their care, by having a legal charge placed on the property. This would have meant they would not have to repay Mr X’s care home fees (sell the property) until Mr X passes away. Houses in the area are about £450,000, so there will be enough funds left for Mr and Mrs C to buy another property. As such, Mr and Mrs C are not at risk of homelessness (see paragraph 7.4 above).
• It fully acknowledges that Mrs and Mr C have cared for Mr X over a number of years. However, this is not an exceptional circumstance that merits the Council disregarding Mr X’s share of the property and maintaining him at public expense.
• The Council recognises Mr and Mrs C have health concerns and Mrs C has been recently signed off work due to stress. However, there are insufficient grounds to disregard the property on (Mr and Mrs C’s) health grounds.
• It paid the Council’s contribution to the care home on 1 July 2019; this was for the period 22 November 2018 to 4 May 2019.
31. Mrs C told me the example in the care act guidance (paragraph 7.3 above) is very similar to their situation. They both sold their house and moved in with the ‘cared for’ to provide support and at a time when there was no suggestion that the cared for would need to move into a care home. Also, after several years the care needs had increased to a point where it would be best for the cared for to move into a care home. As such, Mrs C says that based on the very strong similarities, and this being used as an example for a discretionary disregard, they should also receive a discretionary disregard.
32. In response, the Council told me that the scenario in the Care Act lacks details that would support a direct application to Mr X’s case. The Council cannot say if the sole reason why Mr and Mrs C moved in with Mr X was to provide the support he needed. They now live in a larger house with their son, for which they only had to contribute 46% to get a two third share. The Council considers that the gain to the family in 2002, their financial circumstances improving by moving in together with Mr X, and their full-time occupation, balanced against the use of public funds to support their increased wealth. As such, the Council says it would not be reasonable to exercise its discretion in this case.
33. Mrs C told me:
• Her father is in £17,000 arrears now.
• They will not enter into a DPA. She explained she has suffered depression, and the uncertainty in years to come can have a severe impact on her mental and physical wellbeing. This is the same for her husband, who has also suffered depression.
• She would have wanted, as part of the appeal process, to have had an opportunity to explain their case face to face. They could only do this in writing, which was not the same. Mrs C says this felt very impersonal at a time that was very distressing to them.
34. The Council says that:
• It does not have a record to show she asked for an additional meeting. 
• The Council carried out an additional visit on 9 April 2019 to discuss the situation about the property.
• Mr C also visited the office on 10 June 2019 to discuss the case with the Team Manager.

Analysis

35. The Council failed to explain, when Mr X went into temporary residential respite care, how this would be paid for. This is fault. This uncertainty resulted in distress to Mr and Mrs C
36. The Council also took an unreasonable amount of time (four months after Mr X went into the care home) to determine from which date the Council would start to contribute towards the cost how his temporary residential care, and how much Mr C would have to contribute towards the overall costs. This uncertainty resulted in distress to Mr and Mrs C. During this time, Mr and Mrs C provided the information the Council asked for within an appropriate timescale.
37. The discretionary disregard report form does not include a key question, namely: what was the reason they moved in together with Mr X? Did they move in with Mr X (and sell their own house) for the purpose of providing care? As such, there is no evidence to conclude the Council included this important consideration as part of its decision, at the time. This is fault. Even in its appeal response, and its initial response to the Ombudsman, the Council failed to mention that one of the key arguments made by Mr and Mrs C was that they bought the house together to care for Mr X. As such, it was important to note that Mr and Mrs C therefore claimed that their situation was similar to the example mentioned in the Guidance (see paragraph 7 - 3rd bullet point). However, the Council has since considered this information, which has not changed their view (see paragraph 32).
38. Although there was fault in the way in which the Council considered the case of a discretionary disregard at the time (see above) the Council has, eventually, considered all the relevant facts and arguments in this case. As such, the Council’s final decision is merits (see paragraph 3) and I do not see a reason to ask the Council to further review its decision.

Agreed action

39. I recommended that, within four weeks of my decision, the Council should:
• Apologise to Mr and Mrs C for the faults and delays referred to above and the distress this has caused them. It should also pay them £300 to remedy this.
• Review the discretionary disregard report form to ensure it captures all the key information, and answers all the key questions, that the Council needs to consider when making a decision about discretionary property disregards.
• The Council should remind its adult social care and finance staff of the importance to ensure that clients receive enough information and advice, as early as possible, to ensure that a client is able to understand any contributions they may, or will be, asked to make so they can make an informed decision.
40. The Council has told me it has accepted my recommendations.

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Final decision

41. For reasons explained above, I have found fault with the actions of the Council and have therefore upheld Mr and Mrs C’s complaint. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case

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Investigator's decision on behalf of the Ombudsman