• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate this complaint about a decision by the Council following it completing a financial assessment related to residential care costs. This is because he cannot make any determination of fault by the Council and he cannot question the merits of a decision in the absence of fault. The Council has admitted the assessment was delayed. The Ombudsman considers its offer of £500 is a satisfactory remedy in this respect and does not propose to take further action.

The complaint

1. The complainant who I refer to as Mr D, is making a complaint about the Council conducting a financial assessment for his mother’s (who I refer to as Mrs B) care needs in residential care. Mr D says:

• His brother, who I refer to as Mr F, contributed to the purchase price of Mrs B’s property and was in occupation prior to its sale. Mr D feels the property should not be included in the financial assessment.
• The Council wrongly exchanged personal information with Mrs B’s care provider related to the financial assessment.
• The process of having the financial assessment reviewed by the Council meant long delays. He complains that the Council did not respond to his letters or emails on the subject of the financial assessment.

2. Mr D wants a further review of the financial assessment.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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’.
5. 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 investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended).
6. 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).
7. We normally expect someone to refer the matter to the Information Commissioner Office (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended).

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How I considered this complaint

8. I have reviewed Mr D’s complaint to the Ombudsman and Council, including supporting documents. I have also had regard to the responses of the Council and its financial assessment. Mr D also commented on a draft of this decision and his comments were taken into account in reaching a final determination.

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What I found

Background

9. Any council must assess a person’s financial resources to determine whether they should pay for their own care needs. The legal framework for charging is set out in sections 14 and 17 of the Care Act 2014.
10. It is the policy of the Council to charge for residential and nursing accommodation and it carries out a financial assessment to determine this. Where the person is in permanent residential care, all property owned by the person, either in part or in full, will be treated as available capital when calculating an assessed charge.
11. However, in circumstances where the person’s stay in residential care is only temporary and they intend to return, or if the main home is occupied by a qualifying relative as their main or only home, the property will be disregarded when assessing the charge. This is known as a ‘property disregard’.

What happened

12. Mrs B is in residential care and for a time, she received financial support from the Council to help fund her care costs. In April 2018, Mrs B sold her property and the proceeds of the sale were received by her in full. This subsequently led the Council to conduct a financial assessment and determine that she had sufficient available capital to fund her own care needs.
13. In August 2018, Mr D wrote to the Council to advise that he felt there was a lack of a rigorous process in conducting the financial assessment. Further, he believes the assessment failed to take into account that part of the purchase price of the property was loaned to Mrs B by Mr F and that he had been in occupation at the property prior to its sale.
14. In September 2018, the Council requested evidence from Mr D that Mr F had contributed to the purchase price of Mrs B’s property. It advised that this could be in the form of bank statements, legal ownership titles or solicitor’s letters. This was not provided and Mr D thereafter requested a review of the financial assessment where he cited it would be difficult to provide evidence in support of this claim, particularly as the agreement had been informal, on a verbal basis and because both Mrs B and Mr F were in poor health.
15. In October 2018, the Council completed its review of its financial assessment and decision, but due to administrative failings it did not communicate the findings of the review to Mr D until May 2019. It did not uphold Mr D’s review request and determined that Mrs B was the sole legal beneficial owner of the property and as such, all proceeds were correctly treated as her own available capital.
16. In July 2020, the Council declined to review the financial assessment decision at appeal. Mr D was subsequently signposted to the Ombudsman.

Assessment

Contribution to property purchase

17. In the absence of evidence that Mr F held a beneficial interest (acquired by means of contributing to the purchase price) in the property sold, I cannot form a view on the balance of probabilities that Mrs B was not the sole legal and beneficial owner since this is the position as per the title deeds to the property sold.
18. I recognise that Mr D believes it unreasonable to expect family members to have written agreements drawn up when it comes to sharing financial resources. However, he has indicated he would be able to provide a solicitor’s letter in support of his brother contributing to the purchase price of Mrs B’s property. Assessing such evidence is beyond my remit. This would need to be put to the Council as it has requested.
19. In my view, the Council undertook the financial assessment with due regard to that Mr D and Mr F could not demonstrate that Mr F had either a legal or beneficial interest in Mrs B’s property. On this basis, I cannot find fault by the Council for treating the sale proceeds received in full by Mrs B as available capital and I cannot question the merits of a decision properly made and in the absence of fault.

Property disregard

20. As regards to Mr F also being in occupation prior to the property’s sale, there are circumstances prescribed by law which allow the value of the property to be disregarded from a financial assessment where a qualifying relative is in occupation. However, these circumstances only apply when the qualifying relative is in occupation while the owner is in residential care. As the property was sold, that Mr F was in occupation prior to the sale is not within the remit of a property disregard. This position is, in my view, sufficiently set out in the Council’s written policy and I see no fault in how this area of policy has been applied in this case.

Data protections concerns

21. In addition, I note Mr D holds concerns that the Council wrongly shared sensitive financial information with Mrs B’s care provider. Normally, data protection matters should be raised with the ICO since this is the body established by Parliament to deal with such concerns.
22. However, on review of the documents, I see no evidence that sensitive financial information has been shared with the care provider. Correspondence has been exchanged giving notification to the care provider that Mrs B is a self-funder following the financial assessment and in my view, it reasonably needed to know this. Further, notification of substantial care arrears was given by the care provider to the Council which provisionally paid this so to safeguard Mrs B’s care. In my view, this exchange of information by the care provider was to Mrs B’s benefit.

Poor communications and review of financial assessment

23. Finally, I recognise that Mr D had to wait a considerable amount of time for a review of the financial assessment to be undertaken by the Council. On review of the relevant documents, I note the Council accepted failings as regards to a lack of communications and administrative errors which resulted in a review of the financial assessment being delayed. On that basis, I do find fault by the Council and I accept this caused Mr D and Mr F inconvenience. That said, I note the Council has apologised and offered both Mr D and Mr F £250 each by way of a goodwill payment. In my view, this is a sufficient remedy to address the fault and I see no reason to recommend an alternative outcome.

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Final decision

24. I will not investigate this complaint. This is because I cannot make any determination of fault by the Council in the way it undertook the financial assessment of Mrs B’s care needs. As to the fault I have determined, it is my view the Council have offered an adequate remedy and I would not recommend an alternative outcome.

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Investigator's decision on behalf of the Ombudsman

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