Summary: Mrs X complains about the Council’s decision to include her father’s share of the home he shared with his wife in his financial assessment. The Council has not dealt with this matter properly, which leaves some doubt over whether it has made the right decision. It therefore needs to reconsider its decision.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains about the Council’s decision to include her father’s share of the home he shared with his wife in his financial assessment

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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. 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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mrs X’s Solicitor;
• discussed the complaint with the Solicitor;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with the Solicitor and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

5. Mrs X’s father, Mr Y, has lived in a care home since 2016. He now has advanced Parkinson’s disease. Mrs Y, who has dementia, remained living in the family home. In July 2018 Mr Y had been waiting to move to another care home for eight months, as the one he was living in could no longer meet his needs. He had been given 12 months to live. There was nowhere available in Cornwall, so the Council offered him a placement in Devon. Around this time Mr Y transferred the family home, which had been in his and his wife’s names, into the names of their two children. The placement in Devon was not convenient for his family in Cornwall, so Mr Y decided to live in a care home close to where Mrs X lives in another part of the county. He moved there on 3 September 2018. Mrs Y went to stay with Mrs X so she could continue to visit her husband regularly. Mrs Y has spent some time living in a care home but is now living in rented accommodation.
6. In June 2019 the Council told Mrs X her father had to repay £38,642.90, which it had contributed towards his care home fees between 3 September 2018 and 19 June 2019. It said he would have to pay the full cost of his care from 20 June 2019.
7. Mrs X’s Solicitor complained to the Council about its decision. She said the Council had ignored the temporary circumstances and:
• they had originally intended to sell the home in Cornwall and buy somewhere for Mrs Y to live close to her husband and Mrs X;
• as Mrs Y wanted to return to Cornwall and Mr Y had been given 12 months to live, the family decided not to sell the property in Cornwall;
• they had rented the property in Cornwall for six months to cover the £250 monthly support/management charges;
• Mrs Y was currently living in a care home waiting for a needs assessment by the local authority, so returning to her home may not be a “practical option”, nevertheless her current stay in a care home was temporary;
• if Mrs Y’s stay in the care home became permanent, the Council could take the property in Cornwall into account;
• Mr Y would be under threat of eviction if the Council stopped funding his care from 20 June.
8. When the Council replied on 27 June it said:
• Mr and Mrs Y transferred ownership of the property to their daughters on 22 August 2018;
• this constituted deprivation of a capital asset;
• it could therefore take account of Mr Y’s share of the property when assessing his finances from 22 August 2018;
• it could not offer any disregard for the property after 22 August 2018 as Mr Y no longer owned it; and
• Mr Y needed to repay £40,293.13 for the cost of his care since 22 August 2018.
9. On 1 July the Solicitor:
• disputed the claim that Mr Y had deprived himself of the asset (to avoid care charges), as the purpose was to enable the daughters to manage the property as Mrs Y no longer has the mental capacity to do this herself; and
• said the family had not claimed the Council should disregard the property from Mr Y’s financial assessment.
10. When the Council replied in August 2019, it said:
• the mandatory disregard for the property Mr and Mrs Y had lived in did not apply after 31 August 2018 as Mrs Y did not occupy the property as her main and only home after that:
1. on 13 August 2018 its Council Tax department received a letter from Mrs X saying her mother would no longer be living at the property from 31 August 2018;
2. Mrs Y had been living in a care home since 16 March 2019;
3. Council Tax records showed a tenant had occupied the property since May 2019.
• it could not offer a deferred payment agreement because Mr Y could not provide acceptable security via a charge on the property as he no longer owns it.
11. Mrs X’s Solicitor says the family do not dispute the claim that transferring the property into the daughter’s names amounts to deprivation of capital. However, she says the Council should disregard the property because Mrs Y intends to return to it after her husband has died. If that is not possible, she says the Council should offer a deferred payment agreement, so the property does not have to be sold to pay Mr Y’s care home fees. She says the daughters are willing to transfer ownerships back into their parents’ names, as she accepts the Council could not offer a mandatory deferred payment agreement while it remains in the daughters’ ownership.

Is there evidence of fault by the Council which caused injustice?

12. Annex B of the Care and Support Statutory Guidance says:
• “For the purpose of the property disregard, the meaning of ‘occupy’ is not closely defined. In most cases it will be obvious whether or not 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 weighing up all relevant factors in order to reach a decision. An emotional attachment to the property alone is not sufficient for the disregard to apply.” (paragraph 38)
• “Circumstances where it may be unclear might include where a qualifying relative has to live elsewhere for the purposes of their employment, for example a member of the armed services or the diplomatic service. Whilst they live elsewhere in order to undertake their employment, the property remains their main or only home. Another example may be someone serving a prison sentence. It would not be reasonable to regard the prison as the person’s main or only home and they may well intend to return to the property in question at the end of their sentence. In such circumstances the local authority may wish to consider the qualifying relative’s length of sentence and the likelihood of them returning to the property. Essentially the qualifying relative is occupying the property but is not physically present.” (paragraph 39)
• “The local authority will need to take account of the individual circumstances of each case. However, it may be helpful to consider the following factors in making a decision.” (paragraph 40)
1. “does the relative currently occupy another property?”
2. “if the relative has somewhere else to live do they own or rent the property (for example, how secure/permanent is it?)”
3. “if the relative is not physically present is there evidence of a firm intention to return to or live in the property?”
4. “where does the relative pay council tax?”
5. “where is the relative registered to vote?”
6. “where is the relative registered with a doctor?”
7. “are the relative’s belongings located in the property?”
8. “is there evidence that the relative has a physical connection with the property?”
• “An important aim of the charging framework is to prevent people being forced to sell their home at a time of crisis. The regulations under the Care Act 2014 therefore create space for people to make decisions as to how to meet their contribution to the cost of their eligible care needs. A local authority must therefore disregard the value of a person’s main or only home for 12 weeks in the following circumstances:” (paragraph 45)
1. “when they first enter a care home as a permanent resident;”
2. “when a property disregard other than the 12-week property disregard unexpectedly ends because the qualifying relative has died or moved into a care home.”
13. The Council has failed to clearly address the claim that Mrs Y intends to return to her home in Cornwall after her husband has died. That is fault by the Council.
14. The Council has failed to give Mr Y a 12-week property disregard on the basis that he was not eligible for a disregard as he no longer owns the property. That was fault by the Council. If the Council takes a property into account it must also provide the mandatory disregards.
15. In June 2018 the Council said it was charging Mr Y the full cost of his care from 22 August 2018. That was fault as Mrs Y continued to live in the property until 31 August 2018. However, it appears the Council corrected this error when it wrote to the Solicitor in August 2019.

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Agreed action

16. The Council has agreed that within six weeks it will:
• reconsider its decision and addresses the claim that Mrs Y intends to return to her home in Cornwall when her husband has died, taking account of any further evidence/representations Mrs X may provide;
• if it continues to take account of the property in Mr Y’s financial assessment:
1. consider applying a 12-week property disregard from the date Mrs Y left the property;
2. will offer Mr Y a deferred payment agreement if his daughters return the property into their parents’ ownership.

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Final decision

17. I have completed my investigation, as the Council has agreed to take action to remedy the injustice caused by its faults.

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Investigator's decision on behalf of the Ombudsman